Rule: Production and Utilization Facilities Domestic Licensing: Nuclear Power Plants Construction Activities Limited Work Authorizations

Tuesday,
October 9, 2007
Part III
Nuclear Regulatory
Commission
10 CFR Parts 2, 50, 51, 52, and 100
Limited Work Authorizations for Nuclear
Power Plants; Final Rule
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57416 Federal Register / Vol. 72, No. 194 / Tuesday, October 9, 2007 / Rules and Regulations
NUCLEAR REGULATORY B. NRC’s Concept of Construction and the posted draft rule language on the NRC’s
COMMISSION AEA rulemaking Web site before issuance of
C. NRC’s LWA Rule Complies With NEPA the initial proposed rule on July 3, 2003
10 CFR Parts 2, 50, 51, 52, and 100 1. NRC’s Concept of Construction Is
(68 FR 40026). However, a number of
Consistent With the Legal Effect of NEPA
RIN 3150–AI05 2. NRC’s Concept of the ‘‘Major Federal factors, including the experience gained
Action’’ Is Consistent With NEPA Law in using the 10 CFR part 52 early site
Limited Work Authorizations for 3. NRC’s Phased Approval Approach Is Not permit process, led the NRC to question
Nuclear Power Plants Illegal Segmentation Under NEPA whether the July 2003 proposed rule
D. Consideration of Activities as would meet the NRC’s objective of
AGENCY: Nuclear Regulatory ‘‘Construction.’’ improving the effectiveness of its
Commission. 1. Driving of Piles processes for licensing future nuclear
ACTION: Final rule. 2. Excavation
power plants (March 13, 2006; 71 FR
3. Temporary Structures and Activities in
SUMMARY: The Nuclear Regulatory the Excavation 12782). As a result, the NRC decided
Commission (NRC) is amending its 4. Construction SSCs that a substantial rewrite and expansion
regulations applicable to limited work E. Phased Application and Approval of the original proposed rulemaking was
authorizations (LWAs), which allow Process desirable so that the agency may more
F. EIS Prepared, but Facility Construction effectively and efficiently implement
certain construction activities on Was Not Completed
production and utilization facilities to the licensing and approval processes for
G. Commission Action on PRM–50–82 future nuclear power plants under part
commence before a construction permit IV. Section-by-Section Analysis
or combined license is issued. This final 52. Accordingly, the Commission
V. Availability of Documents
rule modifies the scope of activities that VI. Agreement State Compatibility decided to revise the July 2003
are considered construction for which a VII. Voluntary Consensus Standards proposed rule and published the revised
construction permit, combined license, VIII. Environmental Impact—Categorical proposed rule for public comment on
or LWA is necessary, specifies the scope Exclusion March 13, 2006 (71 FR 12782). The
of construction activities that may be
IX. Paperwork Reduction Act Statement public comment period on the March
X. Regulatory Analysis 2006 proposed rule ended on May 30,
performed under an LWA, and changes XI. Regulatory Flexibility Act Certification
the review and approval process for 2006.
XII. Backfit Analysis
LWA requests. The NRC is adopting XIII. Congressional Review Act 2. Industry Stakeholder Comments
these changes to enhance the efficiency Seeking Changes to LWA Process
of its licensing and approval process for I. Background
In a May 25, 2006 comment letter,1
production and utilization facilities, A. Development of the Supplemental the Nuclear Energy Institute (NEI)
including new nuclear power reactors. Proposed LWA Rule suggested modifications to the NRC’s
DATES: The effective date is November 8,
1. 10 CFR Part 52 Rulemaking LWA process including: (1) That non-
2007. safety-related ‘‘LWA–1’’ activities,
FOR FURTHER INFORMATION CONTACT: This LWA rulemaking originated as a
supplement to an NRC rulemaking effort currently reflected in §§ 50.10(c) and
Nanette V. Gilles, Office of New 50.10(e)(1), be allowed to proceed
Reactors, U.S. Nuclear Regulatory to revise 10 CFR part 52. The NRC
issued 10 CFR part 52 on April 18, 1989 without prior authorization from the
Commission, Washington, DC 20555– NRC, and (2) that the approval process
0001; telephone 301–415–1180; e-mail: (54 FR 15372), to reform its licensing
process for future nuclear power plants. for safety-related ‘‘LWA–2’’ activities be
NVG@nrc.gov or Geary Mizuno, Office accelerated. NEI’s comment also stated
of the General Counsel, U.S. Nuclear 10 CFR part 52 added alternative
licensing processes in 10 CFR part 52 that the current definition of
Regulatory Commission, Washington, construction in § 50.10(b) reflects the
DC 20555–0001; telephone 301–415– for early site permits (ESPs), standard
design certifications, and combined correct interpretation of the
1639; e-mail: GSM@nrc.gov. Commission’s licensing authority under
licenses. These were additions to the
SUPPLEMENTARY INFORMATION: the Atomic Energy Act of 1954, as
I. Background two-step licensing process that already
existed in 10 CFR part 50. The processes amended.
A. Development of the Supplemental NEI supported its suggested changes
Proposed LWA Rule in 10 CFR part 52 allow for resolving
1. 10 CFR Part 52 Rulemaking safety and environmental issues early in to the LWA process, stating that the
2. Industry Stakeholder Comments Seeking the licensing proceedings and were business environment requires that new
Changes to LWA Process intended to enhance the safety and plant applicants seek to minimize the
B. Publication of Supplemental Proposed reliability of nuclear power plants time interval between a decision to
LWA Rule and External Stakeholder through standardization. proceed with a combined license
Interactions During the Public Comment The NRC had planned to update 10 application and the start of commercial
Period operation. To achieve this goal, NEI
C. Description of Supplemental Proposed
CFR part 52 after using the standard
design certification process. The stated that non-safety-related ‘‘LWA–1’’
LWA Rule activities would need to be initiated up
II. Public Comments proposed rulemaking action began with
A. Overview of Public Comments the issuance of SECY–98–282, ‘‘Part 52 to 2 years before the activities currently
B. NRC Response to Public Comments Rulemaking Plan,’’ on December 4, defined as ‘‘construction’’ in § 50.10(b).
1. Commission Questions 1998. The Commission issued a staff NEI believes that the current LWA
2. LWA Process requirements memorandum (SRM) on 1 See Letter from Adrian P. Heymer, Nuclear
3. SSCs Within Scope of ‘‘Construction’’ January 14, 1999 (SRM on SECY–98–
4. Excavation Energy Institute, to Annette L. Vietti-Cook,
282), approving the NRC staff’s plan for
5. Compliance With NEPA Secretary, U.S. Nuclear Regulatory Commission,

6. LWA Application Process
revising 10 CFR part 52. Subsequently, Pre-Licensing Construction Activity and Limited
the NRC obtained considerable Work Authorization Issues relating to NRC
7. Other Topics Proposed Rule, ‘‘Licenses, Certifications and
III. Discussion stakeholder comments on its planned Approvals for Nuclear Power Plants,’’ 71 FR 12782
A. History of the NRC’s Concept of action, conducted three public meetings (March 13, 2006) (RIN 3150–AG24) (May 25, 2006)
Construction and the LWA on the proposed rulemaking, and twice (ADAMS ML061510471).
Federal Register / Vol. 72, No. 194 / Tuesday, October 9, 2007 / Rules and Regulations 57417
approval process would constrain the C. Description of Supplemental proposed rule. Ten comments were from
industry’s ability to use modern Proposed LWA Rule external industry stakeholders,
construction practices and needlessly The supplemental proposed LWA rule consisting of NEI and 7 nuclear power
add 18 months to estimated would narrow the scope of activities plant licensees—including the 3
construction schedules for new plants requiring permission from the NRC in applicants for ESPs whose applications
that did not reference an early site the form of an LWA by eliminating the are currently pending before the NRC,
permit with LWA authority. NEI’s concept of ‘‘commencement of and 2 companies who have applied (or
comment letter stated that ‘‘[t]o the construction’’ currently described in are expected to apply) for standard
extent the NRC determines that these § 50.10(c) and the authorization design certifications (GE Nuclear and
described in § 50.10(e)(1). Instead, Areva NP). One commenter, Dianne
LWA issues cannot be addressed in the
under the supplemental proposed rule, Curran, submitted a comment on behalf
current rulemaking, we ask that the
NRC authorization would be required of Public Citizen, a consumer advocacy
Commission initiate an expedited organization, and the Nuclear
rulemaking.’’ only before undertaking activities that
have a reasonable nexus to radiological Information and Resource Service
The NRC determined that the changes (NIRS), an information and networking
health and safety and/or common
suggested in the NEI letter could not be organization for organizations
defense and security (i.e., excavation,
incorporated into the final part 52 rule concerned about nuclear issues and
subsurface preparation, installation of
without re-noticing, but that the NEI energy sustainability. One comment was
the foundation, and on-site, in-place
letter met the sufficiency requirements received from the EPA, and one
fabrication, erection, integration or
for a petition for rulemaking as comment was received from an NRC
testing, for any structure, system, or
described in 10 CFR 2.802(c). Therefore, staff individual.
component of a facility required by the NEI supported the general approach
the NRC elected to treat the letter as a Commission’s rules and regulations to
petition for rulemaking (PRM–50–82). and objective of the supplemental
be described in the site safety analysis proposed rule, but raised three key
B. Publication of Supplemental report or preliminary or final safety issues on the supplemental proposed
Proposed LWA Rule and External analysis report). While the proposed rule: (1) Inclusion of excavation in the
redefinition of ‘‘construction’’ would definition of ‘‘construction;’’ (2)
Stakeholder Interactions During the
result in fewer activities requiring NRC Designation of structures, systems, and
Public Comment Period
permission in the form of an LWA, it components (SSCs) ‘‘required to be
The supplemental proposed LWA rule also would redefine certain activities described’’ in the standard safety
was published in the Federal Register (such as the driving of piles) that are analysis report or final safety analysis
on October 17, 2006 (71 FR 61330) for currently excluded from the regulatory report (FSAR) as a key element of the
a 30-day public comment period which definition of construction given in definition of ‘‘construction;’’ and (3)
ended November 16, 2006. During the § 50.10(b), as construction requiring an Limiting submittal of LWA applications
public comment period, the NRC held a LWA. up to 12 months in advance of a
Further, the supplemental proposed combined license application. NEI also
public meeting on November 1, 2006, to
LWA rule provided an optional, phased proposed a number of changes to the
answer external stakeholder questions
application and approval procedure for supplemental proposed rule to address
about the supplemental proposed LWA
construction permit and combined three less-significant areas of concern:
rule. A transcript of the public meeting license applicants to obtain LWAs. The
was made (Agencywide Documents (1) An LWA applicant’s reliance on an
supplemental proposed rule provided earlier EIS for an unconstructed facility;
Access and Management System for an environmental review and
(ADAMS) Accession No. (2) LWA applicant’s ability to take
approval process for LWA requests that advantage of the provisions of
ML063190396), as referenced in the would allow the NRC to grant an
meeting summary (ADAMS Accession § 2.101(a)(9) for an accelerated hearing
applicant permission to engage in LWA schedule when submitting an LWA
No. ML062970517). activities after completion of an EIS application in advance of a combined
In addition, the NRC informally addressing those activities, but before license application; and (3) The need for
contacted several Federal agencies that completion of the comprehensive EIS ‘‘grandfathering’’ of current ESP
traditionally have been interested in addressing the underlying request for a applicants. Finally, NEI suggested that
environmental impacts statements construction permit or combined § 2.101(a)(5) be modified from the
(EISs) prepared by the NRC before the license. The supplemental proposed March 2006 proposed rule to allow one
issuance of LWAs and construction rule also delineated the environmental part of a combined license application
permits, for the purpose of seeking their review required in situations where the to precede or follow the other part of the
comments on the supplemental LWA activities are to be conducted at application by no more than 12 months.
proposed LWA rule. These Federal sites for which the Commission has The other industry commenters,
agencies were the Council on previously prepared an EIS for the including GE Nuclear and Areva NP,
Environmental Quality (CEQ), the U.S. construction and operation of a nuclear generally supported the NEI comments,
Environmental Protection Agency power plant, and for which a and in some cases provided additional
(EPA), the Federal Energy Regulatory construction permit was issued, but discussion in support of one or more of
construction of the plant was never NEI’s specific comments.
Commission (FERC), and the U.S.
completed. Public Citizen and NIRS opposed
Department of the Interior, Fish, and
II. Public Comments granting of an LWA in advance of
Wildlife Service (FWS).
issuance of a construction permit or
Finally, the Commission held a public A. Overview of Public Comments combined license, in general because
meeting on November 9, 2006, on the The NRC received 13 public

overall part 52 rulemaking, at which comments 2 on the supplemental main part 52 rulemaking, was erroneously
time industry stakeholders presented designated as comment no. 1 on the supplemental
proposed LWA rule. This number was later
additional information on the 2 A public comment dated November 7, 2006, assigned to a comment filed by Diane Curran on
supplemental proposed LWA rule. from Westinghouse Electric Company LLC, on the behalf of Public Citizen and the NIRS.
these commenters perceived the process NRC approval in the form of a construction The NRC does not believe that the
as introducing additional complexity to permit or combined license. Therefore, in final LWA rule adds any further
the licensing process, and increasing the addition to the general invitation to submit complexity to the licensing process, or
cost to individuals who wish to comments on the proposed rule, the NRC otherwise results in further
also requests comments on the following
participate in the licensing process. questions:
‘‘disenfranchisement’’ of the public. As
These organizations supported the 1. What types of activities should be stated above, the NRC’s regulatory
NRC’s proposal to include excavation permitted without prior NRC approval? regime already includes the LWA
and the driving of piles in the definition 2. What types of activities should be process, and the rule does not modify or
of construction. permitted under an LWA? change the public’s ability to participate
The EPA indicated that it had no 3. What types of activities should only be in the licensing process. Indeed, rather
objections to the supplemental proposed permitted after issuance of a construction than ‘‘disenfranchising’’ the public, the
LWA rule, stating that the supplemental permit or combined license? LWA rule may have the effect of
rule would ‘‘enhance the efficiency of Only one commenter provided enhancing the ability of external
the NRC’s LWA approval process, while separate responses to these three stakeholders to participate in a hearing
maintaining appropriate consideration Commission questions; but the to resolve their issues with respect to a
of environmental effects pursuant to responses were simply an abbreviated particular nuclear power plant. Because
NEPA [National Environmental Policy version of the comments. The remaining of resource limitations, many public
Act of 1969, as amended].’’ In addition, commenters addressed the issues raised stakeholders have expressed their
NRC was advised by telephone that CEQ in these questions in the course of the concern that, because of the broad range
had no objection to the supplemental commenters’ discussion on the of issues addressed by the NRC at each
proposed LWA rule, and therefore supplementary proposed LWA rule. stage of licensing, it is difficult for them
would not submit a written comment on Accordingly, the NRC is not providing to seek resolution in an NRC hearing for
the rule. a separate discussion of these questions the full range of issues that they are
The NRC staff individual provided and commenters’ responses. Instead, the interested in. For these stakeholders, the
eight numbered comments on the NRC is responding to these issues in the LWA process—by separating out a
supplemental proposed LWA rule. The NRC’s responses to specific comments. defined set of issues to be resolved in
commenter focused on compliance with advance of the underlying combined
2. LWA Process
the NEPA and the potential adverse license or construction permit
effect of the supplemental proposed rule Comment: The Commission should proceeding—allows public stakeholders
on the NRC staff’s resources. adopt the LWA final rule as a necessary to focus their resources on the relevant
improvement to the existing LWA issues in an LWA hearing. The
B. NRC Response to Public Comments
process. (NEI, Dominion Nuclear North ‘‘complexity’’ of the process provides an
The NRC has carefully considered the Anna, Duke Energy, Florida Power and orderly sequencing of the overall set of
stakeholder comments, and is adopting Light, Progress Energy, Southern issues that must be resolved, without
a final LWA rule which differs in some Company, Unistar, Areva, and GE introducing unlawful segmentation. The
respects from the supplemental Nuclear) NRC believes that if these public
proposed LWA rule. The final rule is NRC Response: The NRC agrees with stakeholders consider the revised
described and discussed in more detail the commenters that the former NRC process in this light, they should
in Sections III. Discussion, and IV. provisions on LWAs should be amended conclude that the LWA process
Section-by-Section Analysis of this to improve the LWA process. enhances, rather than detracts from,
document. Comment: The Commission should participation in the licensing process by
The NRC is adopting the LWA rule as interested members of the public who
not adopt regulations that allow
a separate final rule, rather than are resource-limited.
approval of LWA activities in advance
incorporating its provisions into the
of the issuance of a construction permit The NRC does not believe that the
final part 52 rule. Incorporating the
or combined license. Allowing LWA NRC’s proposed redefinition of
provisions of the final LWA rule into
activities before a plant is licensed ‘‘construction’’ constitutes unlawful
the final part 52 rulemaking would have
would confirm to the public that the ‘‘segmentation’’ which results in non-
resulted in a delay in publication of the
licensing process is a sham. The LWA compliance with NEPA. Segmentation,
final part 52 rule, because of the
process represents a further as discussed elsewhere in this SOC,
additional time needed for NRC
segmentation of the licensing process, embraces the situation where a Federal
consideration and resolution of the
which will add complexity to the agency divides what would otherwise
substantial issues raised in the public
licensing process, and result in further be regarded as a single, integrated
comments on the supplemental
disenfranchisement of the public. Federal action into separate, smaller
proposed LWA rule. Accordingly, the
(Public Citizen/NIRS 1) Federal actions, for the purpose of
NRC has adopted the final part 52
rulemaking in a separate action, in NRC Response: The NRC disagrees avoiding compliance with NEPA, or
advance of this final LWA rule. with these commenters. The otherwise minimizing the apparent
commenters’ position fails to recognize impact of the single, integrated Federal
1. Commission Questions that the LWA process has been used by action. The NRC’s redefinition of
In the statement of considerations the agency for over 30 years, and construction is not motivated by a
(SOC) for the supplementary proposed therefore the proposed changes to the desire to avoid compliance with NEPA,
LWA rule, the Commission posed three LWA process would not add to nor will it result in a single Federal
questions, as follows (October 17, 2006; complexity, or otherwise represent action being divided into smaller,
71 FR 61340, second column): further segmentation. The agency’s rules sequential Federal actions. Rather, the
As explained above, this supplemental

include several longstanding NRC’s redefinition reflects its
proposed rule would impact the types of requirements directed at avoiding NEPA reconsideration of the proper regulatory
activities that could be undertaken without segmentation. These requirements are jurisdiction of the agency, and properly
prior approval from the NRC, with NRC retained in their essential form in the divides what was considered a single
approval in the form of an LWA, and with final LWA rulemaking. Federal action into private action for
which the NRC has no statutory basis better support an effective licensing advance of the underlying licensing
for regulation, and the Federal action process. In addition, NRC will be decision. (Public Citizen/NIRS 2)
(licensing of construction activities with involved in pre-application activities NRC Response: The NRC disagrees, in
a reasonable nexus to radiological and may elect to conduct oversight of part, with this comment. As discussed
health and safety or common defense any activity involving site in the response immediately above, the
and security, for which no other characterization and site preparation. NRC concludes that excavation may be
regulatory approach is acceptable) The examples cited by the NRC in the excluded from the definition of
which will require compliance with public meeting as a basis for including construction. However, the driving of
NEPA. excavation within the definition of piles and any other foundation work is
‘‘construction’’ did not involve defined as construction.
3. SSCs Within Scope of ‘‘Construction’’
questions about the safety of the Comment: The SOC for the final rule
Comment: The scope of SSCs that excavation activities themselves, but should specify that excavation includes
must be described in the FSAR is not rather the conditions that were appropriate erosion control measures
always clear, even under the words of identified as the result of excavation. In necessary to stabilize site excavations
existing NRC regulations (e.g., 10 CFR these cases, the commitments to pending LWA or license (i.e., combined
50.34(b)(2)(i)), which requires geologic mapping and notification of the license or construction permit) approval
discussion of certain systems ‘‘insofar as NRC are sufficient to meet the NRC’s of construction activities. (NEI 1.5)
they are pertinent.’’ (Areva 1, 2) regulatory interests. Accordingly, NRC Response: The NRC agrees, in
NRC Response: The NRC agrees, in §§ 50.10(b) and 51.4 should be revised part, with this comment. The NRC’s
part, with these comments and has in the final rule to exclude excavation definition of construction in the final
revised the scope of SSCs that fall from the definition of construction, LWA rule includes: (1) Any change
within the definition of construction to provided that the entity conducting made to the parent material in which
clearly identify the SSCs that have a excavation geologically maps the the excavation occurs (e.g., soil
reasonable nexus to radiological health excavations and the NRC staff is notified compaction, rock grouting); and (2) The
and safety, or the common defense and when the excavations are opened for placement of permanent SSCs that are
security. inspection. (NEI 1; GE Nuclear; Progress
Comment: The NRC’s description of put into the excavation during or after
Energy 1) the excavation (e.g., installation of
activities constituting ‘‘construction,’’ NRC Response: The NRC agrees, in
which require a combined license or permanent drainage systems, or
part, with this comment and has deleted
construction permit (October 17, 2006; placement of mudmats). If the erosion
excavation from the definition of
71 FR 61337), should be modified to control measures are conducted outside
construction in 10 CFR 50.10(a). A
refer to the ‘‘installation or integration of the excavated hole and do not cover
construction permit or combined license
of that structure, system, or component up the exposed soil conditions, then
applicant is responsible, under the
into its final plant location and those activities would be allowed under
current regulations, to demonstrate that
elevation * * *.’’ (Progress Energy 4) § 50.10(a). However, under the final
the site conditions are acceptable for the
NRC Response: The NRC agrees in LWA rule, the placement of temporary
proposed facility design. This
part with the commenter, and the SSCs in the excavation, such as
responsibility exists regardless of
corresponding language of this SOC has retaining walls, drainage systems, and
whether or not the NRC reviews and
been modified to state ‘‘into its final approves the proposed excavation erosion control barriers, all of which are
plant location would require * * *.’’ activities and inspects the excavation to be removed before fuel load, would
activities as they are accomplished. not be considered construction.
4. Excavation Comment: ‘‘Construction’’ should be
Inasmuch as NRC inspection and
Comment: It is not necessary to define regulatory oversight of the excavation limited to above-ground installation of
construction as including excavation of are not necessary for reasonable certain SSCs. (Areva 1)
portions of the nuclear power plant assurance of adequate protection to NRC Response: The NRC disagrees.
facility having a ‘‘reasonable nexus to public health and safety or common Even under the former provisions of
radiological health and safety.’’ defense and security, and because the § 50.10(e)(3), construction included the
Problems identified during excavation applicant bears the burden for setting of foundations and other work
should be identified as part of the site accurately characterizing the parent accomplished below grade. The
characterization and investigation material, the NRC concludes that commenter provided no basis for
required for preparing a combined excavation may be excluded from the limiting the definition of construction to
license or construction permit. NRC definition of construction. the above-grade installation of SSCs of
Regulatory Guide (RG) 1.165, Comment: Excavation and the driving interest. No change was made in the
‘‘Identification and Characterization of of piles should be considered final rule as the result of this comment.
Seismic Sources and Determination of ‘‘construction.’’ Prior agency experience Comment: Temporary buildings,
Safe-Shutdown Earthquake Ground has shown that safety issues have been structures, and roads, may be located in
Motion,’’ was updated in 1997 to identified during excavation, citing to the eventual location of SSCs for which
provide that combined license (COL) the experience of North Anna nuclear an LWA is required for excavation
applicants’ FSARs should include a power plant, as well as a nuclear power under the supplemental proposed LWA
commitment to geologically map all plant in the Midwest where soil rule. If excavation is required for the
excavations and notify the NRC when conditions identified during excavation temporary buildings, structures, and
excavations are open for inspection. For necessitated a change in foundation roads, the supplemental proposed rule
safety-related SSCs, these excavations design. Neither the public nor a would appear to prohibit such
and characterization/investigation reviewing court would think that the excavation. The final rule should make
activities would be conducted under the NRC would be able to make the clear that excavation for SSCs outside
applicant’s quality assurance (QA) underlying licensing decision (i.e., the scope of an LWA, such as temporary
program. This could result in relocation granting a construction permit or a buildings, structures, and roads, should
of such SSCs. This provides a better combined license) in an unbiased be excluded from the definition of
process for ensuring safety and would fashion if excavation proceeded in construction. (Areva 3)
NRC Response: As discussed of the true environmental impacts of require any redress plan for the site for
previously, the NRC has decided to construction. Before even talking to the those impacts. (Kugler 2.a)
exclude all excavation from the NRC, a power company can clear and NRC Response: The commenter
definition of construction. In addition, grade the land, build roads and railroad appears to believe that the NRC has
the NRC notes that under the final LWA spurs, erect permanent and temporary authority to exercise its regulatory
rule, SSCs that are not within the scope buildings, build numerous plant jurisdiction in an area where it does not
of construction may be installed before structures (e.g., cooling water intake and otherwise possess regulatory authority
receipt of an LWA, construction permit, discharge, cooling towers), and build under its organic statute, solely for the
or combined license. Accordingly, the switchyards and transmission lines. purpose of ensuring environmental
final rule resolves the commenter’s After potentially doing all of that, THEN redress of private activities with
issue. the company would come to the NRC significant environmental impacts. The
and ask permission to build the power NRC does not agree with the
5. Compliance With NEPA commenter’s implicit suggestion. As
plant for which all of this work was
Comment: The impacts of the done. How does this comply with discussed in the response to the
construction activities that the NRC NEPA? The commenter asserts that the previous comment as well as elsewhere
proposes to exclude from its regulations NRC is going to ignore almost all of the in this SOC, the NRC does not possess
have been part of the NRC regulations construction impacts of the proposed statutory authority to regulate activities
since 1972. What has changed causing action. (Kugler 2) that do not have an impact upon
the NRC to decided that these activities NRC Response: The commenter radiological health and safety or
will not longer be part of the assumes that, if a private action is common defense and security, and
environmental review? Has NRC been preparatory to Federal action, then NEPA does not provide independent
doing it wrong for more than 30 years NEPA provides a statutory basis for the statutory authority to extend the
(including the 3 early site permits that agency to extend its otherwise limited agency’s jurisdiction solely for the
are either completed or near jurisdiction under the AEA to those purpose of assuring that adverse
completion)? (Kugler 1) private, preparatory actions, solely for environmental impacts are considered
NRC Response: As discussed in the the purpose of agency consideration of and mitigated. While this may be a
‘‘Discussion’’ section of this final rule the environmental impacts under NEPA. worthy goal, the NRC may not lawfully
(as well as the supplemental proposed The commenter has not pointed to, and act in such a manner, absent additional
rule), the 1972 amendment to the the NRC has not identified, Federal case statutory authority which is not
definition of construction in 10 CFR law that supports such a position. currently provided by either NEPA or
50.10 was made early in the Federal Indeed, even in a case where the Federal the AEA.
government’s implementation of then- agency had unequivocal statutory Comment: The commenter asserts that
new NEPA. Since that time, the Federal authority to grant or deny a Federal NRC won’t consider the sunk costs in its
case law on NEPA has evolved, with permit, the U.S. Supreme Court review. The commenter also asserts that
several U.S. Supreme Court decisions specifically held that the Federal agency it sounds like the ‘‘baseline’’ for the
on the requirements of NEPA. In was not compelled to require mitigation environmental review will include the
addition, in preparing for the expected based upon environmental environmental damage done by a
next generation of nuclear power plant considerations identified in the NEPA company in terms of ‘‘pre-application’’
construction applications, the nuclear review. Robertson v. Methow Valley activities. In other words, if an applicant
power industry has reviewed the overall Citizens Council, 490 U.S. 332 (1989). for an LWA, CP, or COL has done all of
construction process based upon lessons The commenter also asserts that the the things NRC now allows without
learned from the construction and NRC is going to ‘‘ignore all the [pre- NRC review, the condition of the
licensing process used for currently ]construction impacts of the proposed cleared and partially built site is now
operating reactors. The industry action.’’ On the contrary, as stated the starting point for the environmental
submitted what is essentially a petition elsewhere in this SOC, the pre- review. The commenter states that in
for rulemaking seeking changes to the construction private actions of clearing, terms of comparing this partially built
LWA process, reflecting those lessons grading, access road construction, etc., site to any alternative site, NRC has
learned and their understanding of the will be considered in the cumulative essentially ‘‘pre-selected’’ the site
current state of NEPA law. The NRC has impacts analysis in the LWA EIS as the chosen by the applicant. The
reviewed the applicable law, and for the baseline for analyzing the commenter states there will be less
reasons stated elsewhere in this SOC, environmental impacts associated with environmental impacts at a site that has
agrees with the petitioner that the the Federal action authorizing LWA already had most of the damage done to
current definition of construction and activities. This information will be used it as compared to any other site. The
the current LWA requirements in when evaluating the environmental commenter believes the NRC has
§ 50.10 are not compelled by NEPA or impacts of construction and operation of handed its responsibility for the site
the Atomic Energy Act (AEA) of 1954, the proposed nuclear power plant. suitability determination over to the
as amended. While the agency’s Comment: The commenter states that applicant. (Kugler 2.b)
regulations on construction and LWAs the final rule says NRC won’t consider NRC Response: The commenter makes
were a reasonable implementation of the sunk costs of all of this work in your two incorrect assumptions. First, the
NEPA as understood in 1972, the NRC decision whether to approve the request commenter implicitly assumes that
believes that, with more than 30 years to build the plant. The commenter environmental matters are the key
experience in implementing NEPA and asserts that NRC has allowed the determinants of site suitability. The
the evolving jurisprudence, the time is company to do most of the NRC believes that, as a practical matter
appropriate for reconsideration and environmental damage. Who cleans up and as borne out by the history of site
revamping of these NRC requirements. the mess if the NRC says no? The suitability determinations in the past,
Comment: The impacts of the commenter states that because the NRC other factors, such as seismic activity
construction of a nuclear power plant has excluded from its review all of this and intensity, geological structures,
that NRC now proposes to exclude from work that’s specifically for the purpose meteorological factors, impediments to
NRC regulations are probably 90 percent of building the plant, the NRC also can’t development of emergency plans,
security issues, and demographics an LWA and combined license or EIS for the LWA. The commenter
(population density and distance) from construction permit. believes this means that the EIS that
a safety perspective are at least as The environmental impacts of pre- evaluates the impacts of building and
important, if not more important, than construction activities will also be operating a large commercial power
‘‘environmental’’ matters as a key described in the NRC’s EIS because such plant will be a supplement to the EIS for
determinant of site suitability. description is necessary to evaluate the digging a big hole. The commenter
Second, the commenter assumes that cumulative impacts of the Federal states that assuming the EIS for the big
clearing of a site will always tilt the action, in light of the pre-existing hole ignores all of the other impacts of
environmental balance in favor of the impacts of the private, pre-construction construction that may already have
applicant’s ‘‘pre-selected site.’’ This action. The cumulative impacts taken place, it’s going to be pretty
may not be true in most cases. For discussion should provide information limited in scope. The commenter states
example, even an ‘‘obviously superior’’ on the total environmental impacts of that this EIS of very limited scope will
site from the standpoint of constructing the nuclear power plant to now become the base document, and the
environmental impacts on water— both the NRC decisionmaker and the EIS that considers ALL of the impacts of
which is likely to be the determining general public. operations will be a supplement to it.
‘‘environmental’’ impact—will require The NRC notes that, under the final (Kugler 3)
grading and clearing in order to be used. LWA rule, excavation for SSCs that are NRC Response: The NRC believes that
If construction were to be abandoned at important from a radiological health and the proposed rule is consistent with
the applicant’s ‘‘pre-selected site’’ and safety or common defense and security NEPA. The commenter presented no
commenced at the ‘‘obviously superior standpoint will not be treated as rationale why the NRC’s proposal
site,’’ the environmental impacts of pre- ‘‘construction.’’ Therefore, the violates either NEPA or CEQ’s
construction activities such as clearing environmental effects of excavation implementing regulations. NEPA itself
and grading would still have to be would not be evaluated as an impact only requires that a statement be
performed at the ‘‘obviously superior’’ attributable to the Federal licensing prepared addressing the environmental
site. In essence, the ‘‘sunk action, but instead be added to the impacts and alternatives of major
environmental impacts’’ associated with environmental baseline for a site. Federal actions significantly affecting
preconstruction at the pre-selected site Comment: How are applicants and the environment. The statute does not
are balanced out by the ‘‘future’’ NRC going to divide impacts if some of contain any language specifically
environmental impacts associated with the construction activities now out side constraining the manner in which each
preconstruction at the ‘‘obviously (sic.) the NRC’s scope are going on at the EIS for two sequential Federal actions
superior’’ site. Thus, pre-construction at same time as activities inside NRC’s must be prepared. Hence, the NRC is
a ‘‘pre-selected’’ site could not, in and scope? For example, traffic impacts of free to select a manner of NEPA
of itself, lead to automatic dismissal of the construction workforce are often an compliance which best meets the
otherwise ‘‘obviously superior’’ sites. issue. But how does the NRC deal with agency’s needs.
In any event, the issue of the it if part of the workforce is building The commenter appears to be
‘‘baseline’’ for purposes of alternative cooling towers and intake systems, and concerned that, if the LWA applicant
sites is not addressed directly in the part is building FSAR-listed structures? chooses to submit an environmental
final LWA rule and will be resolved in Another case is property taxes. The report limited to LWA activities, then
the development of NRC guidance on property taxes paid by the company are the LWA EIS would be a relatively
implementation of the final LWA rule. a significant item in the socioeconomic narrow document which cannot be the
Furthermore, the NRC notes that pre- review. Are the applicant and the NRC basis for a supplemental EIS with a
construction impacts will be evaluated now going to have to differentiate greatly expanded scope of subject
as part of the cumulative impacts between taxes paid for FSAR-related matters addressed. The NRC does not
analysis, which may render moot some facilities and taxes paid for other believe that the commenter’s concern is
aspects of the commenter’s concerns in facilities? (Kugler 2.d) well-founded. First, the CEQ’s
this area. NRC Response: The commenter raises regulations specifically permit ‘‘tiering’’
Comment: How can NRC tell the a number of detailed issues with respect of EISs to ‘‘eliminate repetitive
world in an EIS that the only real to NRC implementation of the final rule discussions of the same issues and to
impacts of construction of a nuclear in the course of preparing EISs. None of focus on the actual issue ripe for
power plant will be related to digging a these matters appear to raise issues that consideration at each level of the
big hole and a few other straggling items are insurmountable or would be environmental review * * *’’ (40 CFR
that will occur while the structures unusually difficult to resolve. For 1502.20). Although most of the tiering
described in the FSAR are being built? example, the need to apportion the taxes discussion refers to a broad initial EIS
(Kugler 2.c) for FSAR-related SSCs, versus taxes on followed by more specific EIS tiering on
NRC Response: The commenter other portions of the facility whose the earlier EIS, 40 CFR 1502.20 also
appears to assert that the NRC’s EIS for construction does not require NRC states, ‘‘Tiering may also be appropriate
a combined license must attribute to the approval could be resolved by simply for different stages of actions (emphasis
NRC’s Federal action all of the treating all the taxes paid as a benefit of added).’’ The NRC believes that the
environmental impacts of constructing a operation, and the impacts from all LWA is a stage in the overall Federal
nuclear power facility, including the portions of the plant as an impact of action of issuing a license for
private, pre-construction activities that operation. The NRC expects that the construction (and, in the case of a
may be accomplished by the applicant staff will develop supplemental combined license under part 52,
without any NRC approval. The guidance to the environmental standard operation) of a nuclear power plant. It
commenter’s implicit assertion is review plan on these and other is logical to evaluate the environmental
incorrect. The NRC’s EIS need only implementation matters. impacts of the activities that occur first
describe the environmental impacts of Comment: The commenter states that (i.e., LWA activities), followed by
the Federal action as those construction the rule says that if an LWA is issued, evaluation of the impacts of activities
activities, as defined under § 50.10, the EIS to build and operate a nuclear that occur thereafter (i.e., main
which can only be accomplished under power plant will be a supplement to the construction and operation). The
potential for segmentation of the Federal the environmental impacts of submitted redress plans. Future
impacts is minimized, as discussed construction and operation. applicants won’t have to do this. What
previously, by various provisions of the Comment: Has the NRC discussed happens to the Exelon and Dominion
rule which, inter alia, prohibit NRC these changes with key stakeholders like redress plans? Do they get out of them
consideration of sunk costs, require EPA, CEQ, and FERC? What do they now? If so, how does NRC explain that
consideration of all environmental think of this change? The commenter to all of the folks involved in those
impacts and benefits attributable to states that this is a major shift by the reviews who relied on the NRC’s
LWA activities in the supplemental EIS NRC away from its NEPA representations that a redress plan was
prepared for the underlying combined responsibilities, and believes that other required (e.g., the public, Federal and
license or construction permit agencies may have real problems with it State environmental regulatory
application, and require the applicant/ beyond the basic NEPA issues. For agencies)? What happens to Southern,
licensee to develop and, if necessary, example, will FERC commence a review which is early in its review? (Kugler 6)
implement a redress plan. Second, the for transmission lines if the power NRC Response: The final rule does
CEQ regulations also encourage agencies company hasn’t submitted an not affect the NRC staff’s approval of a
to incorporate by reference material into application to the NRC to build the full-scope redress plan to support LWA
an EIS to cut down on bulk without plant for which it’s needed? Similarly, activities under the former LWA
impeding agency and public review of will the Corps of Engineers issue provisions in §§ 50.10 and 52.17. The
the action. Nothing in the CEQ Section 404 permits to damage wetlands three applicants for ESP which are
regulations suggests that incorporation and dredge if there’s no request to build currently before the NRC are required to
by reference is precluded where the a plant yet? Has anybody talked to meet the NRC’s requirements in effect at
material being incorporated is smaller in them? (Kugler 5) the time of the application, with respect
bulk than the EIS into which the NRC Response: The NRC sought to the content of the application. If the
material is being incorporated. The NRC comments on the proposed rule from final rule is adopted before ESPs are
believes the purpose of incorporation by four Federal agencies who have issued to the current ESP applicants,
reference is served by incorporating the historically been interested in NRC then the applicant may (but is not
LWA EIS into the supplemental EIS construction licensing from an required to seek to revise its redress
prepared at the combined license or environmental standpoint. Advance plan and seek NRC approval of a
construction permit stage. copies of the proposed rule as approved (narrowed) redress plan that meets the
Comment: The commenter states the by the Commission were provided to the requirements of the final LWA rule. In
LWA EIS will only be looking at the CEQ, the EPA, FERC, and the U.S. such a case, the NRC would advise other
impacts of digging the big hole and Department of the Interior, FWS, and Federal and State agencies of the change
pouring the foundation. At what point copies of the proposed rule as published in NRC’s regulatory requirements and
does the NRC staff evaluate the impacts in the Federal Register were any change in the scope of the approved
of construction and operation to electronically transmitted to cognizant redress plan which may be requested by
determine whether the site is individuals in these agencies on the the ESP applicant. Alternatively, upon
SUITABLE for the construction and date of publication of the proposed rule issuance of the ESP, the ESP holder may
operation of a nuclear power plant? Is in the Federal Register (ADAMS request an amendment to its ESP,
that done later? Does that mean that Accession Nos. ML062840445, consistent with the recently-adopted
NRC could authorize digging the hole at ML062910051, and ML062910049). revisions to 10 CFR part 52, to seek NRC
a site that could later be determined by Additional telephone calls were made to approval of a (narrowed) redress plan
NRC to be unsuitable? (Kugler 4) describe the proposed rule and to which is consistent with the
NRC Response: The NRC has decided answer any questions from these agency requirements of the final LWA rule. In
that excavation should not be officials. As discussed earlier in this such an event, the NRC would—as part
considered ‘‘construction,’’ and that document, the NRC has received of its routine procedures—consult with
NRC permission is not required to comments from the EPA, which has no relevant Federal agencies. No change
undertake excavation activities. objection to the change. NRC was from the supplemental proposed LWA
Accordingly, a response to this advised by telephone that CEQ had no rule was made as a result of this
comment, to the extent that it is focused objection to the supplemental proposed comment.
on NRC consideration of the impacts of LWA rule. The NRC has been advised Comment: Section 51.49(a)(2) should
excavation as an impact of the issuance by FERC that it ordinarily would not be revised to delete the requirement for
of the LWA, construction permit, or review transmission line routings for an LWA applicant to state the need for
combined license, is unnecessary. As lines commencing at nuclear power an LWA. (Progress Energy 5)
discussed elsewhere in this document, facilities. The NRC believes that it has NRC Response: The NRC disagrees
the impacts of preconstruction activities made reasonable efforts to obtain input with the commenter’s proposal. An EIS
performed by the ESP holder, from other cognizant Federal agencies, should state the purpose and need for a
construction permit, or combined and none appear to share the concerns proposed action. 10 CFR part 51,
license applicant must be described by of the commenter. No change from the appendix A, paragraph 4; 40 CFR
the applicant in its environmental supplemental proposed LWA rule has 1502.13. Inasmuch as the NRC is acting
report, and must be considered in the been made as the result of this on a private entity’s request in a
cumulative impacts analysis. comment. licensing action, the purpose and need
Under the final LWA rule, the NRC’s Comment: How does this change should be, in the first instance,
evaluation of site suitability must be affect the current early site permit determined by the applicant and be
made when it issues a construction applicants? The commenter states that, adopted by the NRC. No change was
permit or combined license, unless the for example, Exelon and Dominion made to the final rule as a result of this
applicant seeks, either as part of an submitted redress plans for all of the comment.
LWA or in advance of the issuance of impacts of construction they’d be Comment: Sections 51.20(b)(1) and
the construction permit or combined allowed to carry out before receiving a (5), and 51.76(b) and (e) should be
license under subpart F of part 2, an license to build and operate a plant. The revised to allow the NRC staff the option
early decision on site suitability and/or petitioner also believes Southern of preparing and issuing an
environmental assessment (EA) if the references an ESP, it is possible—as the completely rewritten. Can this be done
environmental report shows no commenter correctly points out—that before the first applicant uses the new
significant environmental impacts three EISs may be prepared in the worst rule? (Kugler 8)
associated with LWA activities. case of a less than complete ESP EIS. NRC Response: The NRC agrees with
(Progress Energy 6, 7, 8) However, the final LWA rule does not the commenter that changes to the NRC
NRC Response: The NRC disagrees require the NRC staff to prepare entirely RGs and the environmental standard
with the commenter’s proposal. In new, full-scope EISs at either the LWA review plan will be necessary to provide
preparing the supplementary proposed or the combined license issuance stages. complete guidance to potential
rule, the NRC considered the approach Instead, the EIS at the LWA stage would applicants and the NRC review staff
recommended by the commenter. be limited to considering the with respect to implementation of the
However, the NRC rejected proposing environmental impacts of LWA new LWA process in the final LWA
such an approach because it would activities only (assuming that the LWA rule. However, the NRC does not agree
increase the perception of Federal ER is limited to providing information with the commenter’s implicit assertion
segmentation, without any significant on the environmental impacts of LWA that the guidance must be finalized
countervailing benefits, in terms of activities). This is consistent with NRC before the first applicant (or several
resources or time necessary to complete and CEQ regulations that allow applicants) can use the new LWA
the NEPA process. Furthermore, the incorporation by reference. Preparation process in an effective manner. The
tiering concept, under CEQ regulations, of an LWA EIS limited to those subjects NRC has, in many other instances,
involves sequential EISs rather than an would not be redundant of the ESP EIS, adopted rules containing substantial
EA followed by an EIS. The NRC inasmuch as the impacts of construction changes to its technical and regulatory
believes that it would not be prudent to under this scenario were not addressed requirements applicable to nuclear
pursue a new approach to NEPA in the ESP EIS. Accordingly, there is no power reactors. Although the NRC does
compliance, which may result in legal unnecessary expenditure of NRC not wish to understate the challenge of
instability in an area of critical interest resources attributable to anything in the implementing new rules, it is confident
to industry stakeholders. The LWA rule. When the combined license that the NRC working level technical
commenter presented no information in supplemental EIS is prepared, that EIS staff, under careful and timely oversight
favor of its proposal. Accordingly, in the will be limited to considering new and by NRC staff management, will be able
absence of new information suggesting significant information related to to implement the final LWA rule in a
that the Commission’s initial matters concerning construction and timely, consistent, and effective manner.
determination should be revisited, the operation of the facility which was not Comment: One commenter states that
Commission declines to adopt the addressed in the ESP EIS, unless the the supplemental proposed rule does
commenter’s proposal. No change was matter was discussed in the LWA EIS. not appear to allow an applicant to use
made to the final rule as a result of this In that limited case, the nature and both a phased LWA process and the
comment. description of the LWA construction hearing process for early partial
impacts are deemed to be resolved, and decision on site suitability issues,
6. LWA Application Process thereby allowing an applicant who
these impacts would be considered in
Comment: The commenter states that the overall balancing and wishes to apply for an LWA to also
the NRC expects over 15 applications decisionmaking on issuance of a submit the environmental information
for COLs in the next 3 years or so. combined license without the need to under § 2.101(a)(5) and proceed with an
Perhaps it can staff up to meet the re-examine the nature and description accelerated hearing on the full scope of
challenge of preparing those 15 EISs. of those LWA impacts. Again, the final environmental matters. The
But can it possibly handle 30? If most LWA rule avoids redundant NRC review Commission should adopt changes in
or all of the COL applicants choose to to the maximum extent practicable, §§ 50.10(c)(2) and 2.101(a)(5) to allow
submit an LWA application too, which inasmuch as the combined license EIS an applicant to use both processes
would seem likely, the NRC staff will relies upon the determinations simultaneously. (NEI 5; Unistar 1)
have to prepare two EISs for each site. regarding the nature and impacts of NRC Response: The NRC believes that
Has the NRC considered the resource construction and operation which were the commenter misunderstood the
implications? (And if an applicant made at both the ESP and LWA stages. provisions of the supplemental
chooses to go the ESP route for some The overall scope of the NRC proposed rule. The NRC’s intent is that:
reason, there will be three EISs.) (Kugler environmental review is not changed; it • Applicants may submit a two-part
7) is merely the timing of the review for (phased) application for an LWA in
NRC Response: The commenter individual issues that is affected by the advance of the application for the
appears to believe that, under a revised final LWA rule. underlying combined license or
LWA rule, the overall resources In sum, the NRC does not agree with construction permit, see § 2.101(a)(9).
expended by the NRC in preparing EISs the commenter that the LWA rule will, • The environmental information
would increase over the current as the consequence of its provisions, submitted in the LWA portion of the
regulatory regime in a time frame that result in an adverse impact upon the application may either be limited to the
would exacerbate any problems that amount and timing of expenditure of LWA activities requested, or the full
may be caused by limited NRC staff NRC resources that cannot be managed scope of construction and operation
resources. The NRC disagrees with the in an effective manner. No change from impacts, see § 51.49(b) and (f).
commenter. The final LWA rule merely the supplemental proposed LWA rule • An LWA applicant may seek an
governs the timing of the NRC’s was made in response to this comment. early decision on siting and
environmental review of the overall Comment: One commenter states that environmental matters. If the LWA is
action of licensing the construction and it appears that this new process will submitted in advance of the underlying
operation of a nuclear power plant, require major changes to NRC guidance construction permit or combined license
consistent with NEPA. documents such as RGs and the application, the procedures in 10 CFR
Taking the specific example identified environmental standard review plan. part 2, subpart F, §§ 2.641 through 2.649
by the commenter of a combined license Almost everything related to the apply. If the LWA is submitted as part
applicant, who both seeks an LWA and impacts of construction will have to be of (or after) the construction permit or
combined license application, then the existing paragraph (a)(5) and proposed that pile driving and other subsurface
procedures in subpart F, §§ 2.601 paragraph (a)(9). preparation should be considered
through 2.629 would apply because this However, after further consideration construction, inasmuch as none of the
is the ordinary procedure for obtaining based upon public comments, the NRC comments received addressed this
an early decision on siting and concludes that the 6-month limitation in matter or brought information to the
environmental matters under the paragraph (a)(5) and the proposed 12- NRC’s attention that suggests that the
existing provisions of subpart F. month limitation in paragraph (a)(9) are NRC’s regulatory basis for its position
The NRC does not believe the specific unduly restrictive. The NRC believes should be reconsidered (the public
language changes to the proposed rule that administrative efficiency can be comments received only addressed
described by the commenter are maintained with longer time periods excavation per se, and did not mention
necessary to accomplish these three between parts of applications, in view of pile driving or other subsurface
objectives. Accordingly, the modern information technology, NRC’s preparation). In addition, as discussed
Commission declines to adopt the restructuring of the licensing process in elsewhere in this SOC, the NRC has
changes proposed by the commenter, part 52, the NRC’s recent adoption of redefined and limited the SSCs whose
and no change from the supplemental changes to part 2, subpart D and part 52, construction requires an LWA,
proposed LWA rule was made in appendix N, and the NRC’s projected construction permit, or combined
response to this comment. use of design-centered reviews. In license. Thus, the NRC believes that the
Comment: One commenter proposed addition, the NRC understands, in current ESP applicants will have
that the timing provisions in 10 CFR response to informal inquiries with sufficient authority and flexibility under
2.101(a)(5), requiring that each part of a EPA, that 18 months is well within the the final rule, without any
two-part combined license application time period considered by EPA to be grandfathering of the LWA provisions.
be submitted within 6 months of each acceptable for referencing a previously- Furthermore, regulatory stability from
other, should be revised to be consistent prepared EIS without updating. For the standpoint of backfitting is not
with 10 CFR 2.101(a)(9) of the these reasons, the Commission is relevant, inasmuch as it has been the
supplemental proposed rule, which adopting an 18-month limitation in Commission’s longstanding position
permits the LWA application to be paragraphs (a)(5) and (a)(9) of § 2.101. that backfitting does not protect an
submitted up to 12 months in advance applicant from changes to regulatory
of the underlying combined license or 7. Other Topics
requirements.
construction permit. The commenter Comment: The NRC should include a Comment: The commenter states that
believes that additional conforming ‘‘grandfathering’’ provision in the final proposed § 50.10(c)(3)(i) requires the
changes should be made to implement rule to make clear that the final rule LWA application to: (1) Describe the
this concept, including changes in does not require any change to ESP design and construction information
§ 50.10(c)(2). (Unistar 2) Another applications filed before the effective otherwise required to be submitted for
commenter made the same proposal, but date of the rule, such as supplementing a combined license, but limited to the
separately suggested that the overall the application to require a showing of portions of the facility that are within
time between parts of applications be technical qualifications. The NRC the scope of the limited work
lengthened to 18 months. (NEI 6) should also clarify that the final rule authorization; and (2) Demonstrate
NRC Response: The NRC agrees with would not reduce or limit the authority compliance with ‘‘technically relevant
the commenters that the timing that such applicants would be entitled Commission requirements in 10 CFR
provisions should be consistent. to receive upon issuance of their ESPs Chapter I’’ applicable to the design of
Furthermore, the NRC agrees with the under the current regulations (e.g., those portions of the facility within the
second commenter (NEI) that the overall perform construction of non-safety- scope of the limited work authorization,
time between parts of applications may related SSCs). (NEI 4, Dominion 1) is unduly vague. If specific technical
be lengthened to 18 months. The 6 NRC Response: The NRC agrees with requirements are deemed applicable,
month limitation in former § 2.101(a)(5) the commenters that the final LWA rule they should be justified and identified
for two-part applications was set many does not require any change to ESP in the rule. (Dominion 3)
years ago and reflected internal NRC applications filed before the effective NRC Response: The NRC disagrees
administrative considerations, including date of the rule. Upon further with the commenter that the language of
maximizing efficiency and ensuring consideration, the NRC has decided to § 50.10(c)(3)(i) (§ 50.10(d)(3)(i) in the
continuity of review oversight. The 12- include a ‘‘grandfathering’’ provision in final LWA rule) is unnecessarily vague,
month limitation between submission of the final rule which will provide that or that it would be practical for the rule
the LWA application and the underlying ESP applications which are under language to specify the technical
combined license or construction permit consideration as of the effective date of requirements which are deemed
application, as proposed in the the final LWA rule, which include a applicable. The technical requirements
supplemental proposed LWA rule, was request to conduct § 50.10(e)(1) that are applicable will depend upon
based upon the same considerations, as activities, need not comply with the the scope and nature of LWA activities
well as environmental/NEPA ‘‘content of application’’ requirements requested. Furthermore, this regulatory
considerations. The NRC did not want in the final rule. requirement is modeled on the
the time between the initial submission The NRC does not agree with the provisions of former §§ 50.10(e)(2),
of LWA environmental information and commenter’s view that the final rule (e)(3)(i), and (e)(3)(ii), for which the
the subsequent consideration of the and/or the SOC for the final rule should NRC and the nuclear power industry
overall environmental impacts to be clarify that the current ESP applicants has had decades of experience. The
lengthened to the point that there would should be provided with the authority commenter did not present either
be a substantial likelihood of new and to conduct LWA activities under the alternative language that would address
significant information that would former provisions of § 50.10(e)(1), that its concern with vagueness, or otherwise
require updating. A 12-month limitation is, not be bound by the final LWA rule’s present a list of NRC technical
was established as a reasonable provisions. The final LWA rule does requirements that should be specified as
limitation. No consideration was given allow excavation without an LWA. applicable. The original commenter
to having a consistent limitation in both However, the NRC continues to believe whose submission led to this
rulemaking did not identify this aspect Comment: The commenter states that construction of a nuclear power reactor
of the former rule as presenting a an LWA is not the functional equivalent is not mentioned in Section 101, Section
problem which should be addressed as of an ESP. There are significant 185 of the AEA requires that the NRC
part of the reformulated rule. To modify differences between them, and the time grant construction permits to applicants
the rule language to include a list of and level of NRC staff effort necessary for licenses to construct or modify
technically relevant requirements would to conduct an LWA review should not production or utilization facilities, if the
likely require renoticing of this aspect of be as great as for an ESP review. The applications for such permits are
the rule for public comment, which NRC should clarify the differences acceptable to the NRC. However, the
would delay issuance of the rule with between an LWA and ESP in the SOC term construction is not defined
little benefit, given the 30+ years of for the final rule. (Areva 4) anywhere in the AEA or in the
experience in implementing analogous NRC Response: NRC agrees with the legislative history of the AEA.
rule language in the former versions of commenter that there are some To prevent the construction of
§ 50.10. Accordingly, the Commission significant differences between an LWA production or utilization facilities
declines to adopt the commenter’s review and an ESP. In particular, before a construction permit is issued,
proposal, and no change from the issuance of an LWA does not require the the NRC proposed a regulatory
supplemental proposed LWA rule was NRC to make a finding with respect to definition of construction in 1960 (25
made in response to this comment. site suitability from either a safety or FR 1224; February 11, 1960). The
Comment: The commenter states that environmental standpoint (although the definition of construction was adopted
the finding of technical qualifications LWA applicant may, under in a final rule that same year and
should be limited to LWA activities §§ 2.101(a)(9), 52.17, and 51.49 of the codified in 10 CFR 50.10(b) (25 FR 8712;
applicable to safety-related activities, final rule, submit an environmental September 9, 1960). As promulgated,
because there are no design, report addressing the issues of § 50.10(b) stated that no person shall
construction, or technical requirements alternative, obviously superior sites, and begin the construction of a production
in the NRC’s rules applicable to non- the impacts of construction and or utilization facility on a site on which
safety-related construction work. operation of the nuclear power plant, in the facility is to be operated until a
(Dominion 4) which case the NRC would make a construction permit had been issued.
NRC Response: The NRC disagrees finding on all environmental matters, Construction was defined in § 50.10(b)
with the commenter’s proposal, including alternative, obviously as including:
inasmuch as it is based on the superior sites). The NRC has modified
longstanding industry misconception * * * pouring the foundation for, or the
the section-by-section discussion of the installation of, any portion of the permanent
that the NRC’s regulations in part 50 SOC to make clearer the requirements facility on the site; but [not to] include: (1)
apply only to ‘‘safety-related’’ SSCs and for obtaining an LWA. Site exploration, site excavation, preparation
activities relevant to those SSCs, as that Comment: The commenter states that of the site for construction of the facility and
term is defined in 10 CFR 50.2. This is proposed §§ 51.76(e) and 51.49(e) are construction of roadways, railroad spurs, and
not a correct understanding. For slightly inconsistent, in that the former transmission lines; (2) Procurement or
example, the general design criteria in refers to the LWA applicant’s authority manufacture of components of the facility; (3)
10 CFR part 50, appendix A, apply to to incorporate by reference an earlier Construction of non-nuclear facilities (such
SSCs ‘‘important to safety; that is, as turbogenerators and turbine buildings) and
EIS prepared for the same site if a temporary buildings (such as construction
structures, systems, and components construction permit was issued but
that provide reasonable assurance that equipment storage sheds) for use in
construction never commenced. By connection with the construction of the
the facility can be operated without contrast, § 51.49(e) refers to the LWA facility; and (4) With respect to production or
undue risk to the health and safety of applicant’s environmental report to utilization facilities, other than testing
the public.’’ Id. (first introductory facilities, required to be licensed pursuant to
reference an earlier EIS prepared for the
paragraph). There are numerous other Section 104a or Section 104c of the Act, the
same site if a construction permit was
regulations applicable to the design, construction of buildings which will be used
issued but construction was never
construction, and operation of a nuclear for activities other than operation of a facility
completed. The commenter also states
power facility whose applicability and which may also be used to house a
that inasmuch as the NRC intended to facility. (For example, the construction of a
extends beyond ‘‘safety-related’’ SSCs. It
adopt the more expansive concept college laboratory building with space for
is consistent with Section 182.a of the
embodied in § 51.49(e), the final rule installation of a training reactor is not
AEA and the NRC’s past practice that a
should modify § 51.76(e) to be affected by this paragraph.) (25 FR 8712;
technical qualifications finding be made
consistent to refer to construction not September 9, 1960)
as part of the finding necessary for NRC
being ‘‘completed.’’ (NEI 3) The definition of construction
issuance of an LWA. Accordingly, the
NRC Response: The NRC agrees, and remained unchanged until 1968, when
NRC declines to adopt the commenter’s
the language of § 51.76(e) has been the driving of piles was specifically
proposal, and no change from the
conformed in the final rule. In addition, excluded from the definition (33 FR
supplemental proposed LWA rule was
conforming changes were made in the 2381; January 31, 1968). This change
made in response to this comment.
Comment: The commenter states that subtitles of §§ 51.49(e) and 51.76(e), and was implemented by amending
the reference in § 50.10(d)(2) to the relevant SOC discussion. § 50.10(b)(1) to read: ‘‘Site exploration,
§ 52.17(c) should be changed to III. Discussion site excavation, preparation of the site
§ 50.10(c)(3)(iii), inasmuch as the for construction of the reactor, including
requirement for a redress plan has been A. History of the NRC’s Concept of the driving of piles, and construction of
removed from § 52.17(c) and relocated Construction and the LWA roadways, railroad spurs, and
in § 50.19(c)(3)(iii). (Progress Energy 3) Section 101 of the AEA prohibits the transmission lines.’’ The rationale for
NRC Response: The NRC agrees with manufacture, production, or use of a this change, as articulated in the
the substance of this comment. commercial nuclear power reactor, proposed rule (32 FR 11278; August 3,
Inasmuch as the proposed rule has been except where the manufacture, 1967), seems to have been that the
reorganized in the final rule, the final production, or use is conducted under driving of piles was closely related to
rule refers to the appropriate paragraph. a license issued by the NRC. While ‘‘preparation of the site for
construction’’ and that the performance AEA, was the driving factor leading to Based upon the representations of the
of this type of site preparation activity its adoption of § 50.10(c).3 industry, the NRC agrees that the
would not affect the NRC’s subsequent The NRC issued § 50.10(e) two (2) agency’s regulatory processes should be
decision to grant or deny the years after the expansion of the NRC’s revised and optimized to ensure that
construction permit. With the exception permitting authority resulting from the these stakeholder’s needs are met,
of the exclusion of the driving of piles issuance of § 50.10(c) (39 FR 14506; consistent with the NRC’s statutory
from the definition of construction in April 24, 1974). This provision created obligations and in a manner that is fair
1968, the NRC’s interpretation of the the current LWA process, which was to all stakeholders. Accordingly, the
scope of activities requiring a added to allow site preparation, NRC is adopting this LWA final rule
construction permit under the AEA has excavation, and certain other onsite which revises 10 CFR 50.10, and makes
remained largely unchanged. activities to proceed before issuance of conforming changes in 10 CFR parts 2,
However, following the enactment of a construction permit. Before the 51, and 52. The LWA final rule narrows
the NEPA, as amended, the NRC issuance of § 50.10(e), NRC permission the scope of activities requiring
adopted a major amendment to the to engage in site preparation activities permission from the NRC in the form of
definition of construction in § 50.10 (37 before a construction permit was issued an LWA by eliminating the concept of
FR 5745; March 21, 1972). In that could only be obtained via an ‘‘commencement of construction’’
rulemaking, the NRC adopted a much exemption issued under § 50.12. Section formerly described in § 50.10(c) and the
more expansive concept of construction. 50.10(e) allowed the NRC to authorize authorization formerly described in
Specifically, a new § 50.10(c) was the commencement of both safety- § 50.10(e)(1). Instead, under the final
adopted stating that no person shall related (known as ‘‘LWA–2’’ activities) LWA rule, NRC authorization would
effect ‘‘commencement of construction’’ and non-safety-related (known as only be required before undertaking
of a production or utilization facility on ‘‘LWA–1’’ activities) onsite construction activities that have a reasonable nexus
the site on which the facility will be activities before issuance of a to radiological health and safety and/or
constructed until a construction permit construction permit, if the NRC had common defense and security for which
has been issued. ‘‘Commencement of completed a site suitability report and a regulatory oversight is necessary and/or
construction’’ was defined as: most effective in ensuring reasonable
final environmental impact statement
assurance of adequate protection to
* * * any clearing of land, excavation, or (FEIS) on the issuance of the
other substantial action that would adversely public health and safety or common
construction permit, and the presiding
affect the natural environment of a site and defense and security. While the NRC’s
officer in the construction permit
construction of non-nuclear facilities (such as redefinition of ‘‘construction’’ will
proceeding had made the requisite site
turbogenerators and turbine buildings) for result in fewer activities requiring NRC
suitability, environmental and, in the
use in connection with the facility, but does permission in the form of an LWA,
not mean: (1) Changes desirable for the case of an LWA–2, safety-related
construction permit, or combined
temporary use of the land for public findings.
license, it will also define certain
recreational uses, necessary boring to B. NRC’s Concept of Construction and activities (such as the driving of piles)
determine foundation conditions or other that are currently excluded from the
the AEA
preconstruction monitoring to establish
background information related to the
regulatory definition of construction
Industry stakeholders have stated that given in § 50.10(b), as construction
suitability of the site or to the protection of the business environment, today and in
environmental values; (2) Procurement or requiring such NRC review and
the foreseeable future, requires that new approval.
manufacture of components of the facility;
and (3) With respect to production or plant applicants minimize the time The LWA final rule also provides an
utilization facilities, other than testing interval between a decision to proceed optional, phased application and
facilities, required to be licensed pursuant to with the construction of a nuclear approval procedure for construction
Section 104a or Section 104c of the Act, the power plant and the start of commercial permit and combined license applicants
construction of buildings which will be used operation. To achieve that goal, these to obtain LWAs. An applicant may
for activities other than operation of a facility stakeholders have indicated that non- either submit its LWA application
and which may also be used to house a safety-related ‘‘LWA–1’’ activities jointly with a complete construction
facility * * * (37 FR 5748; March 21, 1972) would need to be initiated up to 2 years permit or combined license application,
The NRC explained that expansion of before the activities currently defined as or submit it in two parts, with the
the NRC’s permitting authority was: ‘‘construction’’ in § 50.10(b). NEI information relevant to issuance of an
[C]onsistent with the direction of the believes that the current LWA approval LWA submitted up to 18 months in
Congress, as expressed in Section 102 of the process would constrain the nuclear advance of the remainder of the
NEPA, that, to the fullest extent possible, the industry’s ability to use modern application addressing the underlying
policies, regulations, and public laws of the construction/management practices and construction permit or combined
United States shall be interpreted and needlessly add 18 months to estimated license. Furthermore, under the LWA
administered in accordance with the policies construction schedules for new plants final rule, the NRC need not address the
set forth in that Act. Since site preparation that did not reference an early site suitability of the site for the operation
constitutes a key point from the standpoint
permit with LWA authority. of a nuclear power plant before issuing
of environmental impact, in connection with
the licensing of nuclear facilities and an LWA. Site suitability will be
materials, these amendments will facilitate 3 See Carolina Power and Light Company addressed as part of the NRC’s
consideration and balancing of a broader (Shearon Harris Nuclear Power Plant, Units 1, 2, 3 consideration of the underlying
and 4), 7 AEC 939, 943 (June 11, 1974) (hereinafter construction permit or combined
range of realistic alternatives and provide a
Shearon Harris) (‘‘The regulations were revised in
more significant mechanism for protecting 1972, not because of any requirements of the license. Moreover, under the LWA final
the environment during the earlier stages of rule the applicant could seek a separate
Atomic Energy Act, but rather to implement the

a project for which a facility or materials precepts of NEPA which had then recently been determination on site suitability issues
license is being sought. (37 FR 5746; March enacted.’’); Kansas Gas and Electric Company (Wolf under subpart F of 10 CFR part 2.
21, 1972) Creek Nuclear Generating Station, Unit No. 1), 5
NRC 1, 5 (January 12, 1977) (explaining that NEPA
The phased approach in the final
Thus, the NRC’s interpretation of its led the AEC to amend its regulations in several LWA rule also provides for an
responsibilities under NEPA, not the respects, including the changes to § 50.10(c)). environmental review and approval
process for LWA requests which allows agency by its organic statute.6 Therefore, site preparation activities to the extent
the NRC to grant an applicant while NEPA may require the NRC to that its influence or control would
permission to engage in LWA activities consider the environmental effects constitute practical or factual veto
after completion of a limited EIS caused by the exercise of its permitting/ power over the non-Federal action.
addressing those activities, but before licensing authority, the statute cannot Further, the NRC does not believe that
completion of the comprehensive EIS be the source of the expansion of the allowing the non-Federal, site
addressing the underlying request for a NRC’s authority to require construction preparation activities to be undertaken
construction permit or combined permits, combined licenses, or other would restrict its consideration of
license. The final LWA rule also forms of permission for activities that alternative sites or the need to assess
delineates the environmental review are not reasonably related to whether there is an ‘‘obviously
required in situations where the LWA radiological health and safety or superior’’ site. Specifically, while the
activities are to be conducted at sites for protection of the common defense and NRC recognizes that narrowing the
which the NRC has previously prepared security. Since NEPA cannot expand the definition of construction may result in
an EIS for the construction and NRC’s permitting/licensing authority substantial changes to the physical
operation of a nuclear power plant, and under the AEA, the elimination of the properties of a site, many of the
for which a construction permit was blanket inclusion of site preparation fundamental elements that enter into a
issued, but construction of the plant was activities in the definition of determination of the existence of an
never completed. construction under § 50.10(c) does not ‘‘obviously superior’’ site would not be
The NRC concludes that the LWA violate NEPA. affected by the changes to those
final rule is fully consistent with the physical properties. For example,
2. NRC’s Concept of the ‘‘Major Federal seismology would not be affected in any
NRC’s radiological health and safety and
Action’’ Is Consistent With NEPA Law significant way by the non-Federal site
common defense and security
responsibilities under the AEA.4 As The AEA does not authorize the NRC preparation activities. However, while
previously mentioned, the term to require an applicant to obtain the effects caused by the non-Federal,
‘‘construction’’ is not defined in the permission before undertaking site site preparation activities would not be
AEA or in the legislative history of the preparation activities that do not considered effects of the NRC’s
AEA. Instead of expressly defining the implicate radiological health and safety licensing action, the effects of the non-
term in the AEA, Congress entrusted the or common defense and security. As a Federal activities would be considered
agency with the responsibility of general matter, the NRC considers these during any subsequent ‘‘cumulative
determining what activities constitute activities to involve ‘‘non-Federal impacts’’ analysis. Specifically, the
construction.5 The NRC has determined action’’ for the purposes of effects of the non-Federal activities will
that the site-preparation activities that implementing its NEPA responsibilities. be considered in order to establish a
would no longer be considered Generally, non-Federal actions are not baseline against which the incremental
construction under this proposed rule subject to the requirements of NEPA.7 effect of the NRC’s major Federal action
do not have a reasonable nexus to Further, the NRC believes that these (i.e., issuing an LWA, construction
radiological health and safety, or the non-Federal site preparation activities permit, or combined license) would be
common defense and security. would not generally be ‘‘federalized’’ if measured. These incremental impacts
Accordingly, the NRC concludes that its the NRC were to ultimately grant a may be additive or synergistic. To
definition of the term, ‘‘construction,’’ is combined license or construction ensure that the NRC has sufficient
reasonable and complies with the AEA. permit. The grant of a construction information to perform the cumulative
The NRC also concludes that issuance permit or combined license by the NRC impacts analysis in a timely fashion, the
of the LWA in advance of a is not a legal condition precedent to final LWA rule includes a requirement,
consideration of site suitability is these non-Federal, site preparation in § 51.45(c), for the environmental
reasonable and complies with the AEA. activities. While the NRC recognizes report submitted by an applicant for an
Any work under the LWA is done at the that there may be a ‘‘but for’’ causal ESP, construction permit, or combined
risk of the LWA holder. relationship between certain non- license to include a description of
Federal site preparation activities and impacts of the applicant’s
C. NRC’s LWA Rule Complies With the major Federal action of issuing a preconstruction activities at the
NEPA construction permit or combined proposed site (i.e., the activities listed in
license, such a ‘‘but for’’ causal paragraph (b)(1) through (8) in the
1. NRC’s Concept of Construction is
relationship is not sufficient to require definition of construction contained in
Consistent With the Legal Effect of
non-Federal, site preparation activities § 51.4) that are necessary to support the
NEPA
to be treated as Federal action for the construction and operation of the
The definition of construction in the facility which is the subject of the LWA,
purposes of NEPA.8
LWA final rule is consistent with the construction permit, or combined
In addition, under the narrowed
legal effect of NEPA. Section 50.10(c) license application, and an analysis of
definition of construction in the LWA
was originally added to part 50 due to the cumulative impacts of the activities
final rule, the NRC concludes that it
the interpretation that the enactment of to be authorized by the LWA,
does not have the ability or discretion
NEPA, not a change in the powers given construction permit, or combined
to influence or control the non-Federal,
to the agency in the AEA, required the license in light of the preconstruction
NRC to expand its permitting/licensing 6 See,e.g., Robertson v. Methow Valley Citizens impacts.
authority. However, subsequent judicial Council, 490 US 332, 350–52 (1989); Natural 3. NRC’s Phased Approval Approach Is
decisions have made it clear that NEPA Resources Defense Counsel v. U.S. Environmental
Protection Agency, 822 F.2d 104, 129 (D.C. Cir Not Illegal Segmentation Under NEPA
is a procedural statute and does not
1987); Kitchen v. Federal Communications The phased application and approval

expand the jurisdiction delegated to an Commission, 464 F.2d 801, 802 (D.C. Cir. 1972).
7 Save the Bay, Inc., v. U.S. Army Corps of
of LWAs does not raise the concerns
4 See State of New Hampshire v. Atomic Energy Engineers, 610 F.2d 322, 326 (5th Cir. 1980). underlying the prohibition of
Commission, 406 F.2d 170, 174–75 (1st Cir. 1969). 8 See Landmark West! v. U.S. Postal Service, 840 segmentation under NEPA law.
5 Shearon Harris, 7 AEC 939. F. Supp. 994, 1006 (S.D.N.Y. 1993) (citing cases). Generally, the NEPA segmentation
problem arises when the environmental of the project, and (2) The underlying construction permit or
impacts of projects are evaluated in a environmental impacts of the site combined license application.
piecemeal fashion and, as a result, the preparation activities allowed in that
D. Consideration of Activities as
comprehensive environmental impacts case were substantially redressable.11
‘‘Construction’’
of the entire Federal action are never These considerations are reflected in
considered or are only considered after the provisions of the LWA final rule. 1. Driving of Piles
the agency has committed itself to Specifically, § 50.10(f) states that any A significant change proposed in the
continuation of the project. Another activity undertaken pursuant to an LWA LWA supplemental proposed rule is the
associated segmentation problem arises are entirely at the risk of the applicant, inclusion of the driving of piles for
when pieces of a Federal action are that the issuance of the LWA has no certain SSCs in the definition of
evaluated separately and, as a result, bearing on whether the construction construction that are not currently
none of the individual pieces are permit or combined license should be defined as construction in § 50.10(b).
considered ‘‘major Federal actions’’ issued, and that the EIS associated with Although the driving of piles was not
requiring an EIS.9 the underlying request will not consider expressly included in the definition of
Neither of these segmentation the sunk costs associated with the LWA ‘‘construction’’ contained in § 50.10(b)
concerns are presented by the approach activities. In addition, § 50.10(d)(3) before the amendment of § 50.10(b)(1) in
embodied in the LWA final rule. First, requires an applicant requesting an 1968, this activity was generally
under both LWA application options in LWA to submit a plan for redress of the considered to be encompassed in the
the LWA final rule, the environmental activities permitted by the LWA, which existing definition of construction at
effects associated with the LWA would to be implemented in the event that time (See 33 FR 2381; January 31,
activities and the project as a whole (i.e., that the LWA holder is ultimately not 1968). The 1967 proposed rule
issuance of a construction permit or issued a construction permit or suggested that the driving of piles be
combined license) would be evaluated combined license. The redress plan expressly excluded from the definition
in an EIS. Therefore, the segmentation would achieve this objective by of construction because that activity ‘‘is
problem of considering a project in addressing impacts resulting from LWA closely related to, and may be
phases, thereby avoiding completion of activities (e.g., pile driving, placement appropriately included in’’ site
an EIS, is not an issue. In addition, all of permanent retaining walls in preparation activities, which were not
of the environmental impacts associated excavations, and construction of considered construction (32 FR 11278;
with the construction and operation of foundations for SSCs within the scope August 3, 1967).12 The rationale for non-
the proposed plant, including the of the LWA final rule). Impacts inclusion of pile driving (and site
impacts associated with the LWA associated with pre-LWA activities preparation activities generally) in the
activities, would be considered together, would not be addressed in the redress definition of construction seems to have
through incorporation by reference, in plan. Further, § 50.10(f) requires that the been that these activities would have no
the EIS prepared on the construction site redress plan be implemented within effect on the NRC’s ultimate decision to
permit or combined license application. a reasonable time and that the redress of grant or deny a construction permit, and
This comprehensive consideration of the site occur within 18 months of the that these activities were undertaken
environmental impacts would take Commission’s final decision denying a entirely at the applicant’s risk. See 32
place before the NRC is committed to construction permit or combined FR 11278; August 3, 1967.
issuing any construction permit or license. The NRC does not believe that the
combined license. The fact that the NRC It should be noted that while redress exclusion of pile driving from the
will not have prejudged the ultimate of site impacts may have the practical definition of construction should hinge
decision of whether to grant a effect of mitigating some environmental on these factors. The Commission
construction permit or a combined impacts, the redress plan is not a believes that the driving of piles for
license by issuing the LWA, coupled substitute for a thorough evaluation of certain SSCs (as discussed separately
with the requirement that the site environmental impacts, or development below) has a reasonable nexus to
redress plan be implemented in the of mitigation measures that may be radiological health and safety, and/or
event that the permit or license is necessary to provide relief from common defense and security and,
ultimately not issued, also ensures that environmental impacts associated with therefore, is properly considered
issuance of the LWA would not the proposed LWA activities. The ‘‘construction’’ as that term is used in
foreclose reasonable alternatives. primary purpose of the site redress plan Section 185 of the AEA. In addition, the
In addition, the proposed application is to ensure that impacts associated with inclusion of these activities in the
and approval process is consistent with any LWA activities performed at the site definition of construction (i.e., requiring
the NRC’s previously expressed position will not prevent the site from being used an LWA before they are undertaken),
that NEPA does not, as a general matter, for a permissible, non-nuclear coupled with the phased approval
prohibit an agency from undertaking alternative use. In this way, the redress process suggested in this supplemental
part of a project without a complete plan helps to preserve the NRC’s ability proposed rule, would allow for early
environmental analysis of the whole to objectively evaluate an application resolution of the safety issues associated
project.10 The key factors used to for a construction permit or combined with these activities. Early resolution of
support the Commission’s position in license, despite the fact that LWA safety issues is consistent with the
Clinch River were: (1) That the site activities have been undertaken at the general rationale underlying the
preparation activities in that case would site. licensing and permitting processes
not result in irreversible or irretrievable In sum, the LWA final rule does not provided in 10 CFR part 52.
commitments to the remaining portions constitute unlawful segmentation in Accordingly, the final rule’s definition
view of the provisions ensuring that the of construction includes the driving of
9 Daniel R. Mandelker, NEPA Law and Litigation,
issuance of an LWA does not predispose piles for certain SSCs.
9–25 (2nd ed. 2004).
10 See Tennessee Valley Authority (Clinch River
or bias the NRC’s decision on the 12 The proposed rule language was issued without
Breeder Reactor Plant), 16 NRC 412, 424 (August modification in the final rule. (33 FR 2381; January
17, 1982) (hereinafter Clinch River). 11 Id. 31, 1968.)
2. Excavation potentially adverse geologic, soil, and temporary SSCs must be removed from
The LWA supplemental proposed rule hydrological conditions not anticipated the excavation, in order for those
would have included excavation within by the applicant, or if excavation temporary SSCs to be excluded from the
the definition of construction. The activities cause unanticipated damage to definition of construction.
inclusion of excavation within the ambit the surrounding native rock. The LWA,
4. Construction SSCs
of construction was based upon two construction permit, and combined
license applicant, as applicable, would The LWA supplemental proposed rule
factors: (1) Excavation activities in the
be responsible—as is currently the revised the former definition of
past have uncovered potentially adverse
case—for adequately describing the construction in 10 CFR 50.10(c) to
geologic, soil, and hydrological
geologic, soil, and hydrologic conditions include the onsite, in-place fabrication,
conditions not anticipated by the erection, integration, or testing of any
construction permit applicant, which of the site. The difference with the
approach in this final rule is that the SSC required by the Commission’s rules
have resulted in design changes; and (2) and regulations to be described in the
Excavation activities in the past have approved site description will, in many
cases, be based upon actual knowledge site safety analysis report, preliminary
caused unanticipated damage to safety analysis report, or final safety
surrounding native rock, which had to of the conditions as revealed or
confirmed by the excavation activities, analysis report. This definition of
be corrected by the construction permit construction included basically all SSCs
holder. The NRC believed that, in these and not only on reasonable assumptions
based upon extrapolations from test of a facility, except for those SSCs that
situations, these considerations were specifically excluded by the
borings and other indirect information.
provided the ‘‘reasonable nexus to proposed definition (e.g., potable water
Therefore, in many cases, the actual
radiological health and safety and/or systems). However, as stated in the
foundation and structural design to be
common defense and security’’ supplemental proposed rule, the
approved at the construction permit or
necessary to include excavation in the Commission has determined that
combined license stage would be based
definition of construction. construction should include all of the
Upon consideration of stakeholder upon actual geologic, soils, and
hydrological information as revealed or activities that have a reasonable nexus
comments and further evaluation, the to radiological health and safety, or
confirmed by the excavation.
NRC has determined that it is not common defense and security.
For these reasons, the Commission
necessary to include excavation within Upon consideration of stakeholder
concludes that existing regulatory
the definition of construction, thus mechanisms provide reasonable comments and further evaluation, the
requiring some kind of NRC review and assurance of public health and safety NRC has determined that there may be
approval before undertaking excavation, and common defense and security some SSCs of a facility which are
to ensure public health and safety or without imposition of the regulatory required to be described in the FSAR,
common defense and security in the mechanism of prior NRC review and but which do not have a reasonable
situations noted previously. With approval of excavation activities. nexus to radiological health and safety
respect to geologic, soils, and Accordingly, the LWA final rule does or the common defense and security.
hydrological matters, prior NRC review not define excavation as being within These SSCs are those which are
and approval of excavation is not the ambit of construction. required to be described in the FSAR to
necessary to ensure that any adverse provide contextual information for
geologic, soil, or hydrological 3. Temporary Structures and Activities understanding the overall design and
conditions that result in the need for in the Excavation operation of the facility, but which do
design changes or some other form of Construction, under the LWA final not actually directly affect the
mitigation are considered in NRC’s rule, includes the placement/ radiological health and safety of the
review of the associated LWA, installation of backfill, concrete, or public or the common defense and
construction permit, or combined permanent retaining walls within an security, and their indirect effect on
license application. In the situation excavation. These activities involve the such health and safety or common
where a potential applicant performs placement/installation of permanent defense and security is so low as to be
excavation activities before submitting parts of the overall facility, and considered negligible. The
its LWA, construction permit, or therefore are properly considered determination of SSCs which do not
combined license application, 10 CFR ‘‘construction.’’ By contrast, the have a reasonable nexus to radiological
52.6(a) requires that information placement/installation of temporary health and safety or common defense
provided to the Commission by an SSCs which will not become part of the and security depends on the design of
applicant for a license be complete and final facility, and therefore are removed, the facility. An example SSC is the
accurate in all material respects. In the should not be treated as ‘‘construction,’’ administration building. However, an
situation where an applicant performs inasmuch as they have no ongoing administration building that includes
excavation activities after submitting its nexus to radiological health and safety the technical support center would fall
LWA, construction permit, or combined or common defense and security. within the scope of SSCs covered by the
license application, 10 CFR 52.6(b) Accordingly, activities in the excavation definition of construction. In sum, the
requires the applicant to notify the for SSCs within the scope of NRC has clarified and narrowed the
Commission of information identified construction, such as the placement/ scope of SSCs falling within the scope
by the applicant as having, for the installation of temporary drainage, of construction to exclude those SSCs
regulated activity, a significant erosion control, retaining walls, which have no reasonable nexus to
implication for public health and safety environmental mitigation, are not radiological health and safety or
or common defense and security. The considered to be within the purview of common defense and security.
staff believes that 10 CFR 52.6 provides ‘‘construction,’’ so long as these For the LWA final rule, the scope of
an equally-acceptable way of ensuring temporary items are removed from the SSCs falling within the definition of
public health and safety if excavation is excavation before fuel load. The NRC construction was derived from the scope
eliminated from the definition of chose fuel loading as a convenient, well of SSCs that are included in the program
construction for those limited situations understood and clear event for for monitoring the effectiveness of
where excavation activities uncover delineating the time by which maintenance at nuclear power plants, as
defined in 10 CFR 50.65(b). This in the licensing process. As previously referenced by an applicant and relied
definition is well understood and there discussed, the NRC believes that these upon by NRC staff. However, it is the
is good agreement on its efficiencies can be gained without Commission’s intent that if these
implementation. The NRC has compromising the agency’s NEPA differences result in significant changes
supplemented the definition in responsibilities, as the phased approach to the environmental impacts caused by
§ 50.65(b) to include the SSCs that are presented in this supplemental the LWA activities currently proposed
necessary to comply with 10 CFR 50.48 proposed rule does not constitute illegal by the applicant, then the differences
and criterion 3 of 10 CFR part 50, segmentation. should be considered ‘‘new and
appendix A, and the onsite emergency significant information’’ material to the
F. EIS Prepared, but Facility
facilities, that is, technical support and environmental impacts that may
Construction Was Not Completed
operations support centers, that are reasonably be expected to result from
necessary to comply with 10 CFR 50.47 The LWA final rule also addresses the the LWA activities. Therefore, these
and 10 CFR part 50, appendix E. These situation where a request is made to differences should be addressed in the
SSCs were added because they have a perform LWA activities at a site for applicant’s environmental report,
reasonable nexus to radiological health which an EIS has previously been analyzed by the NRC staff in a
and safety. The SSCs that are necessary prepared for the construction and supplement to the existing FEIS, and
to comply with 10 CFR part 73 were operation of a nuclear power plant, and considered by the presiding officer.
added because they are required for the a construction permit has been issued, Further, for the reasons previously
common defense and security. but construction of the plant was never discussed in Section C.3 of this
completed. In this special situation, the document, the Commission does not
E. Phased Application and Approval final rule allows an applicant to believe that authorizing LWA activities
Process reference the previous EIS in its before completion of the FEIS on the
Another significant change in this environmental report, but requires that combined license or construction permit
final rule is the modification of the the applicant identify any new and will have the effect of prejudging the
procedure for obtaining LWA approval significant information material to the license/permit, or foreclosing reasonable
by implementing an optional phased matters required to be addressed in the alternatives.
application and approval process. proposed § 51.49(a). Further, in these
Specifically, § 2.101(a)(9) allows special cases the final rule provides that G. Commission Action on PRM–50–82
applicants for construction permits and the NRC will incorporate by reference As discussed previously, the
combined licenses the option of the previous EIS when preparing its Commission is treating the May 25,
submitting either: (1) A complete draft EIS on the LWA activities. The 2006, comments of NEI on the March
application, or (2) a two-part application draft EIS on the LWA request is limited 2006 proposed part 52 rule as a petition
with part one including information to the consideration of any new and for rulemaking, which has been
required for the NRC to make a decision significant information dealing with the designated PRM–50–82. The petition
on the applicant’s request to undertake environmental impacts of construction, was effectively granted when the
LWA activities, and part two containing relevant to the activities to be carried supplemental proposed LWA rule was
all other information required to obtain out under the LWA. Further, in a published (71 FR 61330; October 17,
the underlying license or permit. The hearing on issuance of an LWA at such 2006). With the adoption of this final
final rule allows the NRC to consider sites, the presiding officer is limited to LWA rule, the Commission has
the environmental impacts attributable determining whether there is new and completed action on PRM–50–82.
to the requested LWA activities significant information pertaining to the
separately, either as part of a environmental impacts of the IV. Section-by-Section Analysis
comprehensive EIS in the case where a construction activities encompassed by Part 2—Rules of Practice for Domestic
complete application is submitted, or in the previous EIS that are analogous to Licensing Proceedings and Issuance of
a separate EIS addressing only the LWA the activities to be conducted under the Orders
activities in the case of a two-part LWA. The presiding officer would
application. After consideration of the evaluate new and significant Section 2.101, Filing of Application
environmental impacts and the relevant information in determining whether an Section 2.101 is revised by adding a
safety-related issues associated with the LWA should be issued as proposed by new paragraph (a)(9), which provides
LWA activities, the NRC may allow the either the Director of the Office of New that an applicant for a construction
applicant to undertake the LWA Reactors or the Director of the Office of permit or combined license may submit
activities, even if the EIS on the Nuclear Reactor Regulation, as a request for an LWA either as part of
underlying request (i.e., construction applicable. a complete application under
permit or combined license) is not This provision is designed to gain paragraphs (a)(1) through (4), or in two
complete. efficiency by using existing EISs to parts under this paragraph (i.e., a
The NRC believes that this phased evaluate the environmental impacts of ‘‘phased LWA application’’). If the LWA
application and approval process is activities to be performed under an application is submitted as part of a
more efficient because it prevents LWA. The Commission believes that complete construction permit or
unnecessary delay in nuclear power this practice is appropriate because the combined license application, the
plant construction schedules. This delay referenced environmental review will application must include the
would result if issuance of an LWA for come in the form of an FEIS prepared information required by § 50.10(d)(3).
safety-related activities were delayed by NRC staff for sites on which If the application is a phased LWA
until the final EIS and adjudicatory permission to construct a nuclear power application, the first part must contain
hearing on the entire underlying license plant was ultimately granted by the the information required by
application were complete. In addition, Commission. The Commission § 50.10(d)(3) on the LWA, as well as the
the final rule’s application and approval understands that the activities proposed general information required of all
process should result in the timely in a current LWA request may be production and utilization facility
resolution of relevant safety and different from the activities proposed applicants under § 50.33(a) through (f).
environmental issues at an earlier stage and analyzed in the previous FEIS The second part of the application must
contain the remaining information combined license applications which several subparts if the applicant chose
otherwise required to be filed in a also request LWA authority. to take advantage of the provisions of
complete application under § 2.101(a)(1) § 2.101(a–1), which provides for
Section 2.606, Partial Decision on Site
thorough (4). However, the applicant submission of applications in three
Suitability Issues
would have the further option of parts.
submitting part two in additional Paragraph (a) of § 2.606, which Finally, under paragraph (e), the
subparts in accordance with § 2.101(a– provides that an LWA may not be issued Director is required to publish a second
1). The second part (or the first subpart without completion of the ‘‘full review’’ notice of docketing in the Federal
of multiple subparts under § 2.101(a–1)) required by NEPA, is revised to remove Register for part two of the application.
must be filed no later than 18 months the reference to an LWA, because LWAs As with the notice of docketing for part
after the filing of part one. Part two of are now covered in §§ 2.641 through one, the notice of docketing for part two
the application (or the first subpart of 2.649. may also include a notice of hearing on
any additional subparts submitted in the second part of the application.
Section 2.641, Filing Fees The NRC notes that nothing in
accordance with § 2.101(a–1)) must be
submitted no later than 18 months after Section 2.641, which is comparable to § 2.101(a)(9), or any part of subpart F of
submission of part one of the current § 2.602, provides that a phased part 2, requires that the hearing on part
application. LWA application must be accompanied one of the application be completed and
An applicant for an ESP may not by the applicable filing fees in § 50.30(e) an initial decision issued by the
submit its LWA application in advance and part 170 of this chapter. presiding officer, before part two of the
of the underlying ESP application, and application is filed.
Section 2.643, Acceptance and
therefore is not permitted to use the Docketing of Application for Limited Section 2.645, Notice of Hearing
procedures of subpart F of part 2, or Work Authorization Section 2.645, which is comparable to
submit its application in two parts
Section 2.643, which is comparable to current § 2.604, sets forth the content of
under § 2.101(a)(9). Similarly, the
current § 2.603, describes the the notice of hearing for each of the two
holder of an ESP is not permitted to use
acceptance and docketing requirements parts of the proceeding. Paragraph (a)
the procedures of subpart F of part 2,
for phased LWA applications, and the provides that the notice of hearing for
nor to submit its ESP amendment
requirement for publication in the part one specify that the hearing will
application for LWA authority in two
Federal Register of a notice of relate only to consideration of the
parts under § 2.101(a)(9).
docketing. Paragraph (a) provides that matters related to § 50.33(a) through (f),
Section 2.102, Administrative Review of each part of the application, when first and the LWA issues under review.
Application received, will be treated as a tendered Although not explicitly stated in this
Paragraph (a) of § 2.102 is revised by application and assessed for sufficiency. paragraph, interested persons who seek
adding an LWA to the list of docketed If the submitted part of the application to intervene in the hearing on part one
applications for which the NRC staff is determined to be incomplete, the of the application must file a petition to
must establish a schedule for review of relevant Director will inform the intervene in accordance with the notice
the application. applicant. The determination of of hearing, and § 2.309.
completeness will generally be made in Under paragraph (b), a supplementary
Section 2.104, Notice of Hearing 30 days, barring unusual circumstances. notice of hearing will be published in
The introductory text of paragraph (a) Under paragraph (b), the Director will the Federal Register when part two of
is revised to add LWAs to the list of docket part one of the application only the application is docketed. This
application types for which the if that part is ‘‘complete.’’ The NRC provides a second opportunity for
Commission must issue a hearing would use the existing guidelines and interested persons to file petitions to
notice. In addition, paragraph (c)(1) is practices for determining the intervene with respect to the matters
revised to require the relevant NRC Staff completeness of applications under this relevant to part two of the application.
Director to transmit a copy of the notice section, as are used in determining These petitions must be filed within the
of hearing for an application for an LWA completeness under § 2.101. Upon time specified in the notice of hearing,
to state and local officials. In many docketing, the Director will assign a and must meet the applicable
cases, this is a formality, inasmuch as docket number that will be used requirements of subpart C of part 2,
pre-application interactions between the throughout the entire proceeding including the contention requirements
NRC and the potential LWA applicant (including that part of the proceeding on in § 2.309.
will result in informal contacts with part two of the application). Paragraph (c) addresses continued
those state and local officials. Under paragraph (c), the Director will participation in a phased application
make the designated distributions to the involving a request for advance
Subpart F Governor of the State in which the consideration for an LWA. The
The title of subpart F is revised to nuclear power plant will be located, and provisions of paragraph (c) differ
reflect the broader scope of matters publish a notice of docketing in the somewhat from the existing procedures
covered under this section, as described Federal Register. Often in practice, the in § 2.604 applicable to phased
under § 2.600. notice of hearing required by the AEA applications which do not involve
is included in the notice of docketing, LWAs, in that the Commission has
Section 2.600, Scope of Subpart but as with existing applications, this decided not to allow a party admitted in
The statement of scope in § 2.600 is will remain a matter of discretion by the part one of the proceeding, who did not
revised to reflect the new set of NRC, who will determine the most withdraw or was not otherwise
procedures for phased LWA efficient course of action in this regard. dismissed, to automatically continue as
applications in proposed §§ 2.641 Paragraph (d) provides that part two a party in phase two of the proceeding.
through 2.649. A new paragraph (d) is of the application will be docketed, as Instead, each party who wishes to
added to refer to §§ 2.641 through 2.649 with part one, when it is determined to participate in the second phase must
as containing the applicable procedures be complete. The Commission reiterates submit a second petition to intervene in
for phased construction permit and that ‘‘part two’’ could be submitted in accordance with § 2.309. The petition
need not, however, address the interest definition of ‘‘construction’’ for The SSCs which are within the scope
and standing requirements in § 2.309(d). purposes of this section (the same of the definition of construction, and
The petition must be filed within the definition is also used in part 51, see 10 which have a reasonable nexus to
time provided by the supplementary CFR 51.4). The definition of radiological health and safety or
notice of hearing published in the construction has been substantially common defense and security are set
Federal Register for part two of the modified from the definition in former forth in paragraph (a)(1). This definition
application. § 50.10(b) in both structure and content, was derived from the scope of SSCs that
Paragraph (d) makes clear that a non- and supersedes the definition of are included in the program for
timely petition for intervention filed construction in former § 50.10(c). The monitoring the effectiveness of
under paragraph (b) (incorrectly referred new definition is divided into two parts, maintenance at nuclear power plants
to as paragraph (c) in the supplemental with the first specifying the activities under 10 CFR 50.65, and supplemented
proposed rule) must meet the factors in deemed to constitute ‘‘construction,’’ with SSCs that are needed for fire
both 2.309(c)(1)(i) through (iv), as well and the second part specifying activities protection, security, and onsite
as 2.309(d). This is no different than which are excluded from the definition. emergency facilities. There may be some
non-timely petitions for intervention Under the new definition, excavation SSCs of a facility which do not have a
filed in ordinary, non-phased is excluded from construction. reasonable nexus to radiological health
proceedings. Excavation includes the removal of any and safety or common defense and
As noted in the Section-by-Section soil, rock, gravel, or other material security. The determination of the SSCs
Analysis in this document for § 2.643, below the final ground elevation to the that do not have a reasonable nexus to
nothing in § 2.101(a)(9) or subpart F of final parent material. Thus, all these radiological health and safety or
part 2 requires that the hearing on part excavation activities may be conducted common defense and security will be
one of the application be completed and without an LWA, construction permit, dependent upon the design of the
an initial decision issued by the facility. An example SSC that would not
or combined license. However, the
presiding officer, before part two of the be within the scope of construction is a
placement of permanent, non-structural
application is filed. Thus, there may be cooling tower that is used to cool the
dewatering materials, mudmats and/or
simultaneous hearings on parts one and turbine condenser. However, a cooling
engineered backfill which are placed in
two of the application. However, as system that is used for both safety and
advance of the placement of the
reflected in paragraph (e), the non-safety functions would fall within
foundation and associated permanent
Commission’s intent is that the the definition of construction.
retaining walls for SSCs within the
membership of the Atomic Safety and Construction, as defined in this
scope of the definition of construction
Licensing Board designated for hearings paragraph includes installation of the
are not excavation activities, but instead
under part one be the same as for the foundation, including soil compaction;
hearings under part two, to the extent fall within the scope of construction.
the installation of permanent drainage
practical and consistent with timely Any person or entity that conducts
systems and geofabric; the placement of
completion of each hearing. excavation, however, should be aware
backfill, concrete (e.g., ‘‘mudmats’’) or
that the NRC expects any subsequent
Section 2.647 [Reserved] other materials which will not be
LWA, construction permit, or combined
removed before placement of the
This section is reserved for future use license application to accurately
foundation of a structure; the placement
by the Commission. document and address the conditions and compaction of a subbase; the
exposed by excavation, to ensure that installation of reinforcing bars to be
Section 2.649, Partial Decisions on the NRC will have an adequate basis for
Limited Work Authorization incorporated into the foundation of the
evaluating the relevant portions of the structure; the erection of concrete forms
Section 2.649, which is comparable to LWA, construction permit, or combined for the foundations that will remain in-
§ 2.606, denotes the provisions in license application. place permanently (even if non-
subparts C and G to part 2 relative to Whereas former § 50.10(b) allowed the structural); and placement of concrete or
issues such as oral arguments, driving of piles for the facility without other material constituting the
immediate effectiveness of the presiding NRC approval, the LWA final rule does foundation of any SSC within scope of
officer’s initial decision, and petitions not permit driving of piles for SSCs the definition of construction.
for Commission review, that apply to described in the definition of Foundation installation activities will
partial initial decisions on an LWA construction, unless NRC permission is require an LWA, construction permit, or
rendered in accordance with this obtained in the form of an LWA, combined license. The term
subpart. This section also states that the construction permit, or combined ‘‘permanent’’ in this context, includes
LWA may not be issued without license. The ‘‘driving of piles’’ not anything that will exist in its final, in-
completion of the environmental review related to ensuring the structural place plant location after fuel load. By
required for LWAs under subpart A of stability or integrity of any SSC within contrast, the term, ‘‘temporary,’’ means
part 51. Finally, this section provides the scope of the definition of anything that will be removed from the
that the time for the Commission to construction does not fall within the excavation before fuel load.
exercise its review and sua sponte definition of construction in this Construction also includes the
authority is the same time provided for paragraph, and therefore may be ‘‘onsite, in-place,’’ fabrication, erection,
in part 2 with respect to a final decision accomplished without an LWA, integration, or testing activities for any
on issuance of a construction permit or construction permit, or combined in-scope SSC. The term, ‘‘onsite, in
combined license. license. For example, piles driven to place, fabrication, erection, integration
Part 50—Domestic Licensing of support the erection of a bridge for a or testing’’ is intended to describe the
Production and Utilization Facilities temporary or permanent access road historical process of constructing a
would not be considered ‘‘construction’’ nuclear power plant in its final, onsite
50.10, License Required; Limited Work under this section and may be plant location, where components or
Authorization performed without an LWA, modules are integrated into the final, in-
Paragraph (a), which is derived from construction permit, or combined plant location. The definition is
former § 50.10(b), sets forth a new license. intended to exclude persons from
having to obtain an LWA, construction permit or combined license on the safety issues relevant to the
permit, or combined license, to application’s preliminary or FSAR, as LWA.
fabricate, assemble, and test applicable, must describe the LWA Paragraph (e)(2) requires that the
components and modules in a shop activities that the applicant seeks to LWA specify the activities that the
building, warehouse, or laydown area perform, provide the final design for the holder is authorized to perform,
located onsite. However, the installation structures to be constructed under the consistent with the LWA application
or integration of that SSC into its final LWA and a safety analysis for those and as modified based upon the NRC’s
plant location would require either a portions of the structure, and provide a review. In addition, each LWA will be
construction permit or combined safety analysis of the design issued with a condition requiring
license. The NRC notes that under demonstrating that the activities will be implementation of the redress plan if
§ 50.10(a)(2)(ix), construction does not conducted in accordance with the LWA holder terminates
include manufacturing of a nuclear applicable Commission safety construction, the LWA is revoked, or
power reactor under subpart F of part requirements. upon effectiveness of the Commission’s
52, even if the manufacturing is The environmental report must meet final decision denying the associated
accomplished onsite, so long as the the requirements of 10 CFR 51.49, operating license application or the
manufacturing is not done in-place, at which is discussed in more detail in the underlying combined license
the final (permanent) plant location on Section-by-Section Analysis in this application, as applicable. As discussed
the site. document for that provision. in the analysis of paragraph (e), this
Paragraph (b), which is derived from The redress plan must describe the condition survives the merging of the
former § 50.10(a), prohibits any person activities that would be implemented by LWA into the underlying construction
within the United States from the LWA holder, should construction be permit, ESP, or combined license.
transferring or receiving in interstate terminated by the holder, the LWA is Paragraph (f), which is also derived
commerce, manufacturing, producing, revoked by the NRC, or upon from former § 50.10(e), addresses the
transferring, acquiring, possessing, or effectiveness of the Commission’s final legal effect of an issued LWA. Paragraph
using any production or utilization decision denying the associated (f)(1) provides that any activities
facility except as authorized by a license operating license application or the undertaken under an LWA shall be
issued by the Commission, or as underlying combined license entirely at the risk of the applicant and,
provided in § 50.11. application, as applicable. The primary with exception of the matters
Paragraph (c), which is substantially purpose of the redress plan is to address determined under paragraph (d)(3)(ii)
modified from the former § 50.10(b), the placement of piles and ensure and (iii), the issuance of the LWA shall
prohibits any person from beginning the removal of the foundation, which are have no bearing on the issuance of a
‘‘construction’’ of a production or the only activities which may be construction permit or combined license
utilization facility on a site on which accomplished under an LWA. Redress with respect to the requirements of the
the facility is to be operated until that of site impacts resulting from pre-LWA AEA, and rules, regulations, or orders
person has been issued a construction activities will not be required under the issued under the AEA. Thus, this
permit, a combined license under part redress plan. In addition, while redress paragraph states that the EIS for a
52, or an LWA under paragraph (d) of of LWA impacts may have the practical construction permit or combined license
this section. effect of mitigating some environmental application for which an LWA was
Paragraph (d), which is substantially impacts, the redress plan is not a previously issued will not address, and
modified from the former § 50.10(e), substitute for a thorough evaluation of the presiding officer will not consider,
addresses the need for, nature and environmental impacts, or development the sunk costs of the holder of the LWA
contents of an application for an LWA. of mitigation measures that may be in determining the proposed action (i.e.,
Paragraph (d)(1) allows the Commission necessary to provide relief from
issuance of the construction permit or
to issue an LWA in advance of a environmental impacts associated with
combined license).
construction permit or combined the proposed LWA activities. New paragraph (g) requires the LWA
Paragraph (e) generally addresses the
license, authorizing the holder to holder to begin implementation of the
requirements associated with issuance
perform certain delineated construction redress plan in a reasonable time, and
of an LWA. Paragraph (e)(1) sets forth
requirements. complete the redress no later than 18
the requirements for the appropriate
Paragraph (d)(2) provides that an months after termination of construction
Director to issue an LWA under this
LWA application may be submitted as: by the holder, revocation of the LWA, or
section. The Director may issue an LWA
—Part of a complete application for a only after making the appropriate upon effectiveness of the Commission’s
construction permit or combined findings on: (1) Necessary technical final decision denying the associated
license under § 2.101(a)(1) through qualifications, and the matter of foreign operating license application, or the
(4). ownership or control relevant to the underlying construction permit or the
—Part one of a phased application information required by § 50.33(a) combined license application, as
under § 2.101(a)(9). through (f), as mandated by Sections applicable.
—Part of a complete application for an 103.d. and 182.a. of the AEA; (2) Making Part 51—Environmental Protection
ESP under § 2.101(a)(1) through (4). the necessary findings on public health Regulations for Domestic Licensing and
—An amendment to an already issued and safety and common defense and Related Regulatory Functions
ESP. security with respect to the activities to
Paragraph (d)(3) establishes the be carried out under the LWA; (3) NRC Section 51.4, Definitions
requirements for the content of an LWA staff issuance of a final EIS on the LWA Section 51.4 is revised by adding a
application. The application must in accordance with the applicable new definition of ‘‘construction.’’ This
include a safety analysis report, an requirements of part 51; and (4) The makes applicable throughout part 51 the
environmental report, and a redress presiding officer finding on the definition of construction in proposed
plan. The safety analysis report, which environmental issues relevant to the § 50.10(a), and has the effect of
may be a stand-alone document or LWA in accordance with the applicable excluding from an EIS for any ESP,
incorporated into the construction requirements of part 51, and a finding construction permit, combined license,
or an LWA, any discussion, evaluation information. Both paragraph (a), which environmental report with respect to the
or consideration of the environmental applies to an applicant requesting an environmental impacts of the requested
impacts or benefits associated with non- LWA as part of a complete application, LWA activities, as specified in
construction activities as set forth in and paragraph (b), which applies to an paragraphs (a) or (b). In addition,
§ 50.10(a). This also removes the need applicant submitting its application in analogous to the requirement in
for the NRC decision maker, including two parts under § 2.101(a)(9), requires § 51.50(c)(1)(iv) of the 2007 final part 52
a presiding officer, to make a NEPA the applicant to submit an rule, the environmental report must
finding with respect to the environmental report which describes: include a description of the process for
environmental impacts or benefits (1) The activities proposed to be identifying new and significant
associated with those non-construction conducted under the LWA; (2) The need information. The applicant should have
activities. to conduct those LWA activities in a reasonable process for identifying new
advance of the main action; (3) A and significant information that may
Section 51.17, Information Collection
description of the environmental have a bearing on the earlier NRC
Requirements; OMB Approval
impacts that may reasonably be conclusion, and should document the
Paragraph (b) is revised by adding a expected to result from the conduct of results of this process in an auditable
reference to a new § 51.49, which the requested LWA activities; (4) The form. Documentation related to the
requires submission of an mitigation measures to be implemented applicant’s search for new information
environmental report by LWA to achieve the level of environmental and its determination about the
applicants. While § 51.49 contains a impacts described; and (5) A discussion significance of that new information
new information collection requirement, of the reasons for rejecting other should be maintained in an auditable
this will not result in a net increase in mitigation measures that could be used form by the applicant. The NRC staff
the burden placed on LWA applicants to further reduce environmental will verify that the applicant’s process
because the information required under impacts. Regardless of whether an LWA for identifying new and significant
this new section was formerly required applicant submits an application in two information is effective.
to be submitted by these applicants as parts, or seeks early consideration and Paragraph (f) requires, for any
part of a complete environmental report decision on site suitability and application containing an LWA request,
for the underlying ESP, construction environmental siting matters, the that the environmental report must
permit or combined license under environmental report for the LWA separately evaluate the environmental
§ 51.50. The primary effect of this final should address any impacts attributable impacts and proposed alternatives to the
rule would be to allow delayed to activities for which NRC approval is activities proposed to be conducted
submission of most of the not required (i.e., the activities excluded under the LWA. However, at the option
environmental information to the time from the definition of construction in of the applicant, the environmental
that the underlying construction permit § 50.12(a)). report may also include the information
or combined license application and Paragraph (c) describes the contents of required by § 51.50 to be submitted in
environmental report is submitted. the environmental report when the the environmental report for the
Thus, the environmental report request for the LWA is submitted as part construction permit or combined license
submitted under § 51.49 at the LWA of an ESP application. There is no application. In those situations, the
stage would, in most cases, be limited opportunity for an ESP holder to submit ‘‘integrated’’ environmental report
in scope to address environmental its application in two parts, with the would separately address the total
impacts of LWA activities only. LWA information submitted in advance impacts of constructing (including the
of the main ESP application. LWA activities) and operating the
Section 51.45, Environmental Report Paragraph (d) describes the contents proposed facility. This will allow the
Paragraph (c) is revised by adding a of the environmental report when the NRC to prepare in parallel the EIS for
new requirement requiring LWA request is submitted by an ESP the LWA activities and a supplemental
environmental reports for ESP, holder. In this situation, the EIS for the underlying construction
construction permits, and combined environmental report need only contain permit or operating license, or a
licenses to include a description of information on the LWA activities and complete EIS at the LWA stage.
impacts of the applicant’s pre- their environmental impact, and would
construction activities at the proposed not include the general information Section 51.71, Draft Environmental
site (i.e., the activities listed in required by § 51.50(b). Impact Statement—Contents
paragraph (b)(1) through (8) in the Paragraph (e) establishes a limited Section 51.71 is revised by
definition of construction contained in exception from the information required redesignating the current paragraph (e)
§ 51.4) that are necessary to support the by paragraphs (a) and (b) to be as paragraph (f), and a new paragraph
construction and operation of the submitted in an environmental report. (e) is added to re-emphasize that the
facility which is the subject of the LWA, For those situations where the LWA is draft EIS for the underlying construction
construction permit, or combined to be conducted at a site for which the permit or combined license will not
license application, and an analysis of Commission previously prepared an EIS address or consider the sunk costs
the cumulative impacts of the activities for the construction and operation of a associated with the LWA. Paragraph (e)
to be authorized by the LWA, nuclear power plant, the construction is consistent with § 50.10(f) and new
construction permit, or combined permit was issued, but the construction § 51.103(a)(6).
license in light of the preconstruction of the plant was never completed, then
the applicant’s environmental report Section 51.76, Draft Environmental
impacts.
may incorporate by reference the earlier Impact Statement—Limited Work
Section 51.49, Environmental Report- EIS. However, in the event of Authorization
Limited Work Authorization incorporation by reference, the Section 51.76 is a new section
A new § 51.49 is added to part 51. environmental report must identify governing the NRC’s preparation of a
This new section requires the applicant whether there is new and significant draft EIS to support a decision on an
for an LWA to submit an environmental information relative to the matters LWA. The internal organization of
report containing certain specified required to be addressed in the § 51.76 parallels that of § 51.49.
Paragraph (a) addresses the EIS to be earlier under the LWA instead of Section 51.104, NRC Proceeding Using
prepared in connection with a complete referencing a construction permit or Public Hearings; Consideration of
application for a construction permit or combined license), and the adequacy of Environmental Impact Statement
combined license. This section allows the proposed redress plan. Other than Section 51.104 is revised by adding a
the NRC to prepare at the time of the this updating, the supplemental EIS will new paragraph (c) specifying that in an
LWA application either an EIS limited not present any updated information on
to LWA activities (to be followed by a LWA proceeding, a party may only take
the matters resolved in the ESP EIS. a position and offer evidence on the
supplemental EIS on the underlying
construction permit or combined Paragraph (e) addresses the nature of aspects of the proposed action within
license), or a single, complete EIS for the EIS prepared for an LWA requested the scope of NEPA and this subpart
the construction permit or combined for a site that was approved by the NRC which are within the scope of that
license. The NRC notes that this and a construction permit issued, but party’s admitted contention. This
paragraph addresses the situation where construction of the nuclear power plant paragraph also specifies that, in the
the application for the construction was not completed. In these cases, the LWA phase of the proceeding, the
permit or combined license is complete EIS will incorporate by reference the presiding officer will decide the matters
and includes the request and necessary earlier EIS, address whether there is any in controversy among the parties, viz.,
information for an LWA. Paragraph (b), significant new information with the contentions related to the adequacy
by contrast, addresses the situation respect to the environmental impacts of of the EIS prepared for the LWA. The
where the LWA request is submitted in construction relevant to the scope of scope of the EIS will, in turn, depend
advance of the complete application for activities to be performed under the upon whether the LWA applicant
the construction permit or combined LWA, and evaluate this type of chooses to submit an environmental
license. information in accordance with § 51.71 report limited to LWA impacts, or
Paragraph (b) applies to an EIS in determining if the LWA should be whether the LWA applicant chooses to
prepared in support of a phased LWA issued, or issued with appropriate submit a more comprehensive
under § 2.101(a)(9). In this situation, if conditions. environmental report as permitted
the environmental report submitted in under 10 CFR 2.101 and seeks an early
Paragraph (f) indicates that in all decision on siting matters under subpart
part one is limited to the LWA
cases, the EIS must separately address F of 10 CFR part 2.
activities, then the NRC will prepare an
the impacts of and proposed alternatives
EIS limited to the LWA activities. Once Section 51.105, Public Hearings In
part two of the application is received, to the activities to be conducted under
the LWA, to ensure that there are Proceedings for Issuance of
which includes the environmental Construction Permits or Early Site
report required by § 51.50, the NRC will specific environmental findings
addressing LWA activities for purposes Permits; Limited Work Authorizations
prepare a supplemental EIS for the
construction permit or combined license of transparency of the final NRC NEPA The title of this section is revised to
in accordance with § 51.71, and findings and decision on the LWA add a reference to LWAs, reflecting the
§ 51.75(a) or (c), as applicable. By request. However, this paragraph also expanded scope of matters addressed in
contrast, if the environmental report makes clear that if the applicant’s this section. Second, a new paragraph
submitted in part one is a complete environmental report contains the (c) is added to specify the
environmental report required by comprehensive information necessary to determinations which must be made by
§ 51.50, then the NRC will prepare at the address construction and operation the presiding officer in an LWA hearing
LWA phase a single, complete EIS for impacts for the proposed facility, as is associated with either a construction
the construction permit or combined allowed under 10 CFR 2.101, then the permit or early site permit. Under this
license in accordance with § 51.71, and EIS must similarly address those new paragraph, the presiding officer
§ 51.75(a) or (c), as applicable. impacts, including the costs and would:
Paragraph (c) applies to an EIS benefits of the underlying proposed —Determine whether the requirements
prepared for issuance of an ESP which action. of Section 102(2)(A), (C), and (E) of
will also include an LWA. The EIS will NEPA have been met with respect to
address the scope of matters required to Section 51.103, Record of Decision—
General the activities to be conducted under
be addressed under § 51.75(d), which the LWA.
depends upon the matters which the
Section 51.103 is revised by adding a —Independently consider the balance
applicant chooses to address in its
new paragraph (a)(6), which specifies among conflicting factors with respect
environmental report, as well as the
that in a construction permit or to the LWA.
environmental impacts of conducting
the LWA activities requested. combined license proceeding where an —Determine whether the applicant’s
Paragraph (d) addresses the situation LWA was previously issued, the proposed redress plan is reasonably
where an ESP holder (as opposed to an Commission’s decision on the expected, from a technical standpoint,
applicant) requests an LWA. In this construction permit or combined license to redress activities conducted under
situation, siting and many of the application will not address or consider the LWA, should LWA activities be
environmental issues have been the sunk costs associated with the LWA. terminated by the holder or the LWA
addressed and resolved in the EIS This provision, which is consistent with be revoked by the NRC, or upon
supporting issuance of the ESP. This §§ 50.10(f) and 51.71(e), is intended to effectiveness of the Commission’s
paragraph provides for the NRC to ensure that the Commission’s decision final decision denying the associated
prepare a supplemental EIS, addressing whether to issue the construction permit construction permit or combined
the impacts of conducting LWA or combined license is not biased in license application, as applicable.
activities (including any new and favor of issuance in evaluating the —In an uncontested proceeding,
significant information that would environmental impacts and benefits of determine whether the NRC’s NEPA
change the NRC’s prior conclusion with the construction permit or combined review has been adequate.
respect to those construction activities license, and thereby avoid NEPA —In a contested proceeding, determine
which would actually be conducted segmentation claims. whether the LWA should be issued in
accordance with the regulations in site applications which were submitted activities only if it: (1) References an
part 51. before the effective date of the final ESP which includes LWA authority; or
LWA rule, the new requirements in (2) the combined license applicant
Section 51.107, Public hearings in
§ 52.17(c) do not apply and their applies for and is granted LWA
proceedings for issuance of combined
applications need only meet the authority under § 50.10. Paragraph (b)
licenses; limited work authorizations requirements in former § 52.17(c). requires the combined license applicant
Section 51.107 is revised in two who begins construction under an LWA,
respects. The title of this section is Section 52.24, Issuance of Early Site
Permit to implement the LWA redress plan if
revised to add a reference to LWAs, the underlying combined license
reflecting the expanded scope of matters Paragraph (c) is revised to state that application is withdrawn by the
addressed in this section. Finally, a new an ESP must specify the activities under applicant or denied by the NRC.
paragraph (d) is also added to specify § 50.10 that the permit holder is
the determinations which must be made authorized to perform. Section 52.99, Inspection During
by the presiding officer in an LWA Construction
Section 52.27, Limited Work
hearing associated with a combined Authorization After Issuance of Early Paragraph (a) is revised to replace the
license. This paragraph is essentially the Site Permit reference to 10 CFR 50.10(b) with a
same as § 51.105(c). reference to 10 CFR 50.10(a).
Section 52.27 is redesignated as
Part 52—Licenses, Certifications, and § 52.26, and a new § 52.27 is added. The Part 100—Reactor Site Criteria
Approvals for Nuclear Power Plants new § 52.27 allows an ESP holder to
request an LWA in accordance with Section 100.23, Geologic and Seismic
Section 52.1, Definitions Siting Criteria
§ 50.10—a matter which was not clear
A new definition of LWA is added under the former provisions of part 52. Paragraph (b) is revised to reflect the
which would be defined as the
Section 52.80, Content of Applications; revisions in 10 CFR 50.10 that redefine
authorization provided under § 50.10(d).
Additional Technical Information what is considered ‘‘construction.’’ This
The NRC notes that an applicant of an
paragraph formerly stated that the
ESP who requests authority to perform Paragraph (b) is revised to state that investigations required in 10 CFR
the activities permitted by § 50.10(d), a combined license application that 100.23(c) are within the scope of
would not, if the request were granted, does not request an LWA must include investigations permitted by former 10
receive an LWA separate from its ESP. an environmental report prepared in CFR 50.10(c)(1). This sentence has been
Instead, the ESP itself would authorize accordance with § 51.50(c), and that a revised to state that the investigations
the activities permitted by § 50.10(d). combined license application that does required in 10 CFR 100.23(c) are not
This regulatory approach is consistent request an LWA must include an considered ‘‘construction’’ as defined in
with the current language of §§ 52.17(c) environmental report prepared in 10 CFR 50.10(a).
and 52.25(b). However once an ESP is accordance with §§ 51.49 and 51.50(c).
issued, the holder could apply for Paragraph (c) is revised to require that V. Availability of Documents
permission to conduct LWA activities a combined license application
The NRC is making the documents
under § 52.27 in the form of an containing a request for an LWA must
identified below available to interested
amendment to the ESP. contain the information otherwise
persons through one or more of the
required by 10 CFR 50.10.
Section 52.17, Contents of Applications; following methods as indicated.
Technical Information Section 52.91, Authorization To Public Document Room (PDR). The
Paragraph (c) of § 52.17 is revised by Conduct Limited Work Authorization NRC PDR is located at 11555 Rockville
removing the proposed language with Activities Pike, Rockville, Maryland. http://
respect to LWAs, and specifying that if The heading for § 52.91 is revised. www.nrc.gov/reading-rm/contact-
the applicant wishes to obtain an LWA, Section 52.91 is revised to reflect the pdr.html.
then the information required by elimination of ‘‘LWA–1’’ and ‘‘LWA–2’’ The NRC staff contact. Geary Mizuno,
§ 50.10(d)(3) must be included in the in former § 50.10(e). Under paragraph Mail Stop O–15D21, Washington, DC
site safety analysis report. This (a) of § 52.91, an applicant for a 20555–0001; telephone number 301–
paragraph also makes clear that for early combined license may undertake LWA 415–1639.
NRC
Document PDR Web ADAMS No. staff
2006/05/25—Comment (4) submitted by Nuclear Energy Institute, Adrian P. Heymer on Proposed X X ML061510471 ............
Rules.
SECY–98–282, Part 52 Rulemaking Plan .......................................................................................... ............ ............ ML032801416 ............
Staff Requirements—SECY–98–282—Part 52 Rulemaking Plan ...................................................... ............ ............ ML032801439 ............
Draft Regulatory Analysis .................................................................................................................... X X ML062750434 X
Final Regulatory Analysis .................................................................................................................... X X ML071870012 X
Regulatory History Index for October 17, 2006 Supplemental Proposed Rule .................................. ............ X ML070240575 X
VI. Agreement State Compatibility (62 FR 46517; September 3, 1997), this Regulations, and although an Agreement
rule is classified as compatibility ‘‘NRC’’ State may not adopt program elements
Under the ‘‘Policy Statement on regulations. The NRC program elements reserved to NRC, it may wish to inform
Adequacy and Compatibility of in this category are those that relate its licensees of certain requirements via
Agreement States Programs,’’ approved directly to areas of regulation reserved a mechanism that is consistent with the
by the Commission on June 20, 1997, to the NRC by the AEA or provisions of particular State’s administrative
and published in the Federal Register Title 10 of the Code of Federal
procedure laws, but does not confer IX. Paperwork Reduction Act X. Regulatory Analysis
regulatory authority on the State. Statement The NRC has prepared a regulatory
VII. Voluntary Consensus Standards This final rule amends information analysis for this rule. The analysis
collection requirements contained in (10 examines the costs and benefits of the
The National Technology Transfer alternatives considered by the
and Advancement Act of 1995, Pub. L. CFR parts 50, 51, and 52 that are subject
Commission. Availability of the
104–113, requires that Federal agencies to the Paperwork Reduction Act of 1995
regulatory analysis is provided in
use technical standards that are (44 U.S.C. 3501 et seq.). These
Section V of this document.
developed or adopted by voluntary requirements were approved by the
consensus standards bodies unless Office of Management and Budget, XI. Regulatory Flexibility Act
using such a standard is inconsistent approval numbers 3150–0011, 3150– Certification
with applicable law or is otherwise 0021, and 3150–0151 and the changes In accordance with the Regulatory
impractical. In this rule, the NRC is: (1) contain new or amended information Flexibility Act (5 U.S.C. 605(b)), the
Redefining the scope of activities collection requirements. Existing Commission certifies that this rule will
constituting ‘‘construction’’ for which requirements were approved by the not have a significant economic impact
NRC approval is required; (2) redefining Office of Management and Budget, on a substantial number of small
the scope of activities constituting approval number(s) 3150–0011, 3150– entities. This rule affects only the
construction which the NRC may 0021, and 3150–0151. licensing of nuclear power plants. The
approve in an LWA granted in advance companies that will apply for an
of the issuance of a construction permit The net burden to the public for the
information collections in 10 CFR parts approval, certification, permit, site
or combined license, or which may be report, or license in accordance with the
conducted by a holder of an ESP; and 50, 51, and 52 is estimated to average
zero hours per response, as burden is regulations in this rule do not fall
(3) revising the NRC’s procedures for within the scope of the definition of
granting LWAs. This rulemaking does being shifted from part 52 to part 50,
and within sections of part 51. The ‘‘small entities’’ set forth in the
not establish standards or substantive Regulatory Flexibility Act or the size
requirements with which all applicants burden to the public for the information
standards established by the NRC (10
and licensees must comply. For these collections in 10 CFR part 50 is
CFR 2.810).
reasons, the Commission concludes that estimated to average 1,900 hours per
this action does not constitute the response and the burden for the XII. Backfit Analysis
establishment that contains generally information collections in 10 CFR part The NRC has determined that the
applicable standards. 52 is estimated to average a reduction of backfit rule does not require the NRC to
1,900 hours per response, resulting in prepare a backfit analysis for this
VIII. Environmental Impact—
no change in burden. The burden to the rulemaking, because the rulemaking
Categorical Exclusion
public for the information collections in does not contain any provisions that
The NRC has determined that the 10 CFR part 51 is estimated to result in would impose backfitting as defined in
changes made in this rule fall within the no change in burden, as information the backfit rule, 10 CFR 50.109.
types of actions described in categorical collection requirements are shifted from There are no current holders of
exclusions described in 10 CFR one section to another. This includes construction permits or combined
51.22(c)(1) and (c)(3). Specifically, the the time for reviewing instructions, licenses for nuclear power plants that
conforming changes made to 10 CFR searching existing data sources, would be protected by the backfitting
part 2 qualify for the categorical gathering and maintaining the data restrictions in § 50.109. To the extent
exclusion described in § 51.22(c)(1). The needed, and completing and reviewing that the rulemaking revises the LWA
changes to parts 50, 51, and 52 that the information collection. Send requirements for future ESPs,
describe procedures for filing and comments on any aspect of these construction permits, or combined
reviewing applications for LWAs qualify information collections, including licenses for nuclear power plants, these
for the categorical exclusion described revisions do not constitute backfits
suggestions for reducing the burden, to
in § 51.22(c)(3)(i). All other changes because they are prospective in nature
the Records and FOIA/Privacy Services
qualify for the categorical exclusion and the backfit rule was not intended to
Branch (T–5 F52), U.S. Nuclear
described in § 51.22(c)(3)(iv).13 apply to every NRC action which
Regulatory Commission, Washington,
Therefore, neither an EIS nor an EA has substantially changes the expectations
been prepared for this rule. DC 20555–0001, or by Internet
electronic mail to of future applicants. With respect to the
INFOCOLLECTS@NRC.GOV; and to the ESPs issued by the NRC prior to
13 Although the industry’s request came in the
Desk Officer, Office of Information and adoption of the final LWA rule, the rule
form of a comment on the proposed part 52 rule (71
FR 12782; March 13, 2006), the comment letter Regulatory Affairs, NEOB–10202, does not represent backfitting for several
stated; ‘‘To the extent the NRC determines that (3150–0011, 3150–0021, 3150–0151; 10 reasons. The ESPs issued prior to the
these LWA issues cannot be addressed in the effective date of the final rule were
current rulemaking, we ask that the Commission CFR parts 50, 51, and 52), Office of
granted authority to conduct activities
initiate an expedited rulemaking.’’ The NRC has Management and Budget, Washington,
identified in former § 50.10(e)(1),
determined that the changes suggested by the DC 20503.
industry in Comment 4 (docketed on May 30, 2006) commonly referred to as an LWA–1
could not be incorporated into the final part 52 rule Public Protection Notification activities. Under the final rule, NRC
without re-noticing. Therefore, the Commission has review and approval is not required
decided to treat the comments submitted by the The NRC may not conduct or sponsor,
industry as a petition for expedited rulemaking and
before applicants can commence these
and a person is not required to respond activities. In practical effect, the final
published a supplemental proposed rule for public

comment. The NRC determined that Comment 4 to, a request for information or an rule moots the LWA authority granted
meets the sufficiency requirements described in 10 information collection requirement in the applicable ESPs. Therefore, the
CFR 2.802(c), and that it was appropriate to seek unless the requesting document
public comment on the petition by publishing the
final LWA rule has no applicability to
supplemental proposed rule developed in response displays a currently valid OMB control these ESP holders with respect to their
to the petition, as allowed under 10 CFR 2.802(e). number. already-complete ESP application
process. Finally, the ESP holders are amendments to 10 CFR parts 2, 50, 51, standard design approval, shall be filed
free to seek additional authority under 52 and 100. with the Director of New Reactors,
their ESP in accordance with the final Director of Nuclear Reactor Regulation,
LWA rules provisions; in this respect, PART 2—RULES OF PRACTICE FOR or Director of Nuclear Material Safety
the current LWA holders are treated no DOMESTIC LICENSING PROCEEDINGS and Safeguards, as prescribed by the
differently than future ESP holders who AND ISSUANCE OF ORDERS applicable provisions of this chapter. A
do not seek LWA authority in their ■ 1. The authority citation for part 2 prospective applicant may confer
initial ESP application. For these continues to read as follows: informally with the NRC staff before
reasons, the NRC concludes that the filing an application.
final LWA rule does not constitute Authority: Secs. 161, 181, 68 Stat. 948,
953, as amended (42 U.S.C. 2201, 2231); sec. (2) Each application for a license for
backfitting.
191, as amended, Pub. L. 87–615, 76 Stat. 409 a facility or for receipt of waste
XIII. Congressional Review Act (42 U.S.C. 2241); sec. 201, 88 Stat. 1242, as radioactive material from other persons
amended (42 U.S.C. 5841); 5 U.S.C. 552; sec. for the purpose of commercial disposal
Under the Congressional Review Act 1704, 112 Stat. 2750 (44 U.S.C. 3504 note).
of 1996, the NRC has determined that by the waste disposal licensee will be
Section 2.101 also issued under secs. 53,
this action is not a major rule and has 62, 63, 81, 103, 104, 105, 68 Stat. 930, 932, assigned a docket number. However, to
verified this determination with the 933, 935, 936, 937, 938, as amended (42 allow a determination as to whether an
Office of Information and Regulatory U.S.C. 2073, 2092, 2093, 2111, 2133, 2134, application for a limited work
Affairs of OMB. 2135); sec. 114(f), Pub. L. 97–425, 96 Stat. authorization, construction permit,
2213, as amended (42 U.S.C. 10143(f)), sec. operating license, early site permit,
List of Subjects 102, Pub. L. 91–190, 83 Stat. 853, as amended standard design approval, combined
(42 U.S.C. 4332); sec. 301, 88 Stat. 1248 (42 license, or manufacturing license for a
10 CFR Part 2
U.S.C. 5871).
Administrative practice and Sections 2.102, 2.103, 2.104, 2.105, 2.721
production or utilization facility is
procedure, Byproduct material, also issued under secs. 102, 103, 104, 105, complete and acceptable for docketing,
Classified information, Environmental 183i, 189, 68 Stat. 936, 937, 938, 954, 955, it will be initially treated as a tendered
protection, Nuclear materials, Nuclear as amended (42 U.S.C. 2132, 2133, 2134, application. A copy of the tendered
power plants and reactors, Penalties, 2135, 2233, 2239). Sections 2.105 also issued application will be available for public
under Pub. L. 97–415, 96 Stat. 2073 (42 inspection at the NRC Web site,
Sex discrimination, Source material, U.S.C. 2239).
Special nuclear material, Waste http://www.nrc.gov, and/or at the NRC
Sections 2.200–2.206 also issued under
treatment and disposal. PDR. Generally, the determination on
secs. 161b, i, o, 182, 186, 234, 68 Stat. 948–
951, 955, 83 Stat. 444, as amended (42 U.S.C. acceptability for docketing will be made
10 CFR Part 50 within a period of 30 days. However, in
2201(b), (i), (o), 2236, 2282); sec. 206, 88 Stat
Antitrust, Classified information, 1246 (42 U.S.C. 5846). Section 2.205(j) also selected applications, the Commission
Criminal penalties, Fire protection, issued under Pub. L. 101–410, 104 Stat. 90, may decide to determine acceptability
Intergovernmental relations, Nuclear as amended by section 3100(s), Pub. L. 104– based on the technical adequacy of the
power plants and reactors, Radiation 134, 110 Stat. 1321–373 (28 U.S.C. 2461 application as well as its completeness.
protection, Reactor siting criteria, note). Sections 2.600–2.606 also issued under In these cases, the Commission, under
sec. 102, Pub. L. 91–190, 83 Stat. 853, as
Reporting and recordkeeping amended (42 U.S.C. 4332). Sections 2.700a,
§ 2.104(a), will direct that the notice of
requirements. 2.719 also issued under 5 U.S.C. 554. hearing be issued as soon as practicable
Sections 2.754, 2.760, 2.770, 2.780 also after the application has been tendered,
10 CFR Part 51
issued under 5 U.S.C. 557. Section 2.764 also and the determination of acceptability
Administrative practice and issued under secs. 135, 141, Pub. L. 97–425, will be made generally within a period
procedure, Environmental Impact 96 Stat. 2232, 2241 (42 U.S.C. 10155, 10161). of 60 days. For docketing and other
Statement, Nuclear materials, Nuclear Section 2.390 also issued under sec. 103, 68 requirements for applications under part
power plants and reactors, Reporting Stat. 936, as amended (42 U.S.C. 2133), and 61 of this chapter, see paragraph (g) of
and recordkeeping requirements. 5 U.S.C. 552. Sections 2.800 and 2.808 also
issued under 5 U.S.C. 553. Section 2.809 also
this section.
10 CFR Part 52 issued under 5 U.S.C. 553, and sec. 29, Pub. (3) If the Director of New Reactors,
Administrative practice and L. 85–256, 71 Stat. 579, as amended (42 Director of Nuclear Reactor Regulation,
U.S.C. 2039). Subpart K also issued under or Director of Nuclear Material Safety
procedure, Antitrust, Backfitting,
sec. 189, 68 Stat. 955 (42 U.S.C. 2239); sec. and Safeguards, as appropriate,
Combined license, Early site permit, 134, Pub. L. 97–425, 96 Stat. 2230 (42 U.S.C.
Emergency planning, Fees, Inspection, determines that a tendered application
10154).
Limited work authorization, Nuclear Subpart L also issued under sec. 189, 68 for a limited work authorization,
power plants and reactors, Probabilistic Stat. 955 (42 U.S.C. 2239). Subpart M also construction permit, operating license,
risk assessment, Prototype, Reactor issued under sec. 184 (42 U.S.C. 2234) and early site permit, standard design
siting criteria, Redress of site, Reporting sec. 189, 68 stat. 955 (42 U.S.C. 2239). approval, combined license, or
and recordkeeping requirements, Appendix A also issued under sec. 6, Pub. L. manufacturing license for a production
Standard design, Standard design 91–550, 84 Stat. 1473 (42 U.S.C. 2135). or utilization facility, and/or any
certification. ■ 2. In § 2.101, paragraphs (a)(1), (a)(2), environmental report required under
(a)(3) introductory text, (a)(4), and (a)(5) subpart A of part 51 of this chapter, or
10 CFR Part 100 part thereof as provided in paragraphs
are revised, paragraphs (a)(6) through
Nuclear power plants and reactors, (a)(8) are reserved, and paragraph (a)(9) (a)(5), (a)(9), or (a-1) of this section are
Reactor siting criteria. is added to read as follows: complete and acceptable for docketing,
■ For the reasons set forth in the a docket number will be assigned to the
preamble and under the authority of the § 2.101 Filing of application. application or part thereof, and the
Atomic Energy Act of 1954, as amended, (a)(1) An application for a limited applicant will be notified of the
the Energy Reorganization Act of 1974, work authorization (LWA), a permit, a determination. With respect to the
as amended, and 5 U.S.C. 552 and 553, license, a license transfer, a license tendered application and/or
the NRC is adopting the following amendment, a license renewal, or a environmental report or part thereof that
is acceptable for docketing, the chapter in two parts. One part shall be site permit) may submit its application
applicant will be requested to: accompanied by the information in two parts:
* * * * * required by § 50.30(f) of this chapter, or (i) Part one must include the
(4) The tendered application for a § 52.80(b) of this chapter, as applicable. information required by § 50.33(a)
limited work authorization, The other part shall include any through (f) of this chapter, and the
construction permit, operating license, information required by § 50.34(a) and, information required by § 50.10(d)(2)
early site permit, standard design if applicable, § 50.34a of this chapter, or and (d)(3) of this chapter.
approval, combined license, or §§ 52.79 and 52.80(a), as applicable.
One part may precede or follow other (ii) Part two must include the
manufacturing license for a production
parts by no longer than 18 months. If it remaining information required by the
or utilization facility will be formally
is determined that either of the parts as Commission’s regulations in this
docketed upon receipt by the Director of
described previously is incomplete and chapter which was not submitted in part
New Reactors, Director of Nuclear
not acceptable for processing, the one, provided, however, that this
Reactor Regulation, or Director of
Director of New Reactors, Director of information may be submitted in
Nuclear Material Safety and Safeguards,
Nuclear Reactor Regulation, or Director accordance with the applicable
as appropriate, of the required
additional copies. Distribution of the of Nuclear Material Safety and provisions of paragraph (a)(5) of this
additional copies shall be deemed to be Safeguards, as appropriate, will inform section, or, for a construction permit
complete as of the time the copies are the applicant of this determination and applicant, paragraph (a)(1) of this
deposited in the mail or with a carrier the respects in which the document is section. Part two of the application must
prepaid for delivery to the designated deficient. A determination of be submitted no later than 18 months
addresses. The date of docketing shall completeness will generally be made after submission of part one.
be the date when the required copies are within a period of 30 days. Whichever * * * * *
received by the Director of New part is filed first shall also include the
fee required by §§ 50.30(e) and 170.21 of ■ 3. In § 2.102, paragraph (a) is revised
Reactors, Director of Nuclear Reactor to read as follows:
Regulation or Director of Nuclear this chapter and the information
Material Safety and Safeguards, as required by §§ 50.33, 50.34(a)(1) or § 2.102 Administrative review of
appropriate. Within 10 days after 52.79(a)(1), as applicable, and § 50.37 of application.
docketing, the applicant shall submit to this chapter. The Director of New
Reactors, Director Nuclear Reactor (a) During review of an application by
the Director of New Reactors, Director of
Regulation, or Director of Nuclear the NRC staff, an applicant may be
Nuclear Reactor Regulation, or Director
of Nuclear Material Safety and Material Safety and Safeguards, as required to supply additional
Safeguards, as appropriate, an affidavit appropriate, will accept for docketing an information. The staff may request any
that distribution of the additional copies application for a construction permit one party to the proceeding to confer
to Federal, State, and local officials has under part 50 of this chapter or a with the NRC staff informally. In the
been completed in accordance with the combined license under part 52 of this case of docketed application for a
requirements of this chapter and written chapter for a production or utilization limited work authorization,
instructions furnished to the applicant facility which is subject to § 51.20(b) of construction permit, operating license,
by the Director of New Reactors, this chapter, and is of the type specified early site permit, standard design
Director of Nuclear Reactor Regulation, in § 50.21(b)(2) or (3) or § 50.22 of this approval, combined license, or
or Director of Nuclear Material Safety chapter or is a testing facility where one manufacturing license under this
and Safeguards, as appropriate. part of the application as described chapter, the NRC staff shall establish a
Amendments to the application and previously is complete and conforms to schedule for its review of the
environmental report shall be filed and the requirements of part 50 or part 52 application, specifying the key
distributed, and an affidavit shall be of this chapter, as applicable. The intermediate steps from the time of
furnished to the Director of New additional part will be docketed upon a docketing until the completion of its
Reactors, Director of Nuclear Reactor determination that it is complete, by the review.
Regulation, or Director of Nuclear Director of New Reactors, Director of * * * * *
Material Safety and Safeguards, as Nuclear Reactor Regulation, or Director
of Nuclear Material Safety and ■ 4. In § 2.104, paragraph (a) and
appropriate, in the same manner as for
Safeguards, as appropriate. paragraph (c)(1) are revised to read as
the initial application and
(6)–(8) [Reserved] follows:
environmental report. If it is determined
that all or any part of the tendered (9) An applicant for a construction § 2.104 Notice of hearing.
application and/or environmental report permit for a utilization facility which is
is incomplete and therefore not subject to § 51.20(b) of this chapter and (a) In the case of an application on
acceptable for processing, the applicant is of the type specified in § 50.21(b)(2) which a hearing is required by the Act
will be informed of this determination, or (b)(3) or § 50.22 of this chapter, an or this chapter, or in which the
and the respects in which the document applicant for or holder of an early site Commission finds that a hearing is
is deficient. permit under part 52 of this chapter, or required in the public interest, the
(5) An applicant for a construction an applicant for a combined license Secretary will issue a notice of hearing
permit under part 50 of this chapter or under part 52 of this chapter, who seeks to be published in the Federal Register.
a combined license under part 52 of this to conduct the activities authorized The notice must be published at least 15
chapter for a production or utilization under § 50.10(d) of this chapter may days, and in the case of an application
facility which is subject to § 51.20(b) of submit a complete application under concerning a limited work
this chapter, and is of the type specified paragraphs (a)(1) through (a)(4) of this authorization, construction permit, early
in § 50.21(b)(2) or (3) or § 50.22 of this section which includes the information site permit, or combined license for a
chapter or is a testing facility may required by § 50.10(d) of this chapter. facility of the type described in
submit the information required of Alternatively, the applicant (other than §§ 50.21(b) or 50.22 of this chapter or a
applicants by part 50 or part 52 of this an applicant for or holder of an early testing facility, at least 30 days, before
the date set for hearing in the notice.1 Subpart F—Additional Procedures initial decision sua sponte, or to raise
In addition, in the case of an application Applicable to Early Partial Decisions sua sponte an issue that has not been
for a limited work authorization, on Site Suitability Issues in raised by the parties, will be exercised
construction permit, early site permit, or Connection With an Application for a within the same time as in the case of
combined license for a facility of the Construction Permit or Combined a full decision relating to the issuance
type described in § 50.22 of this chapter, License To Construct Certain of a construction permit or combined
or a testing facility, the notice must be Utilization Facilities; and Advance license.
issued as soon as practicable after the Issuance of Limited Work * * * * *
NRC has docketed the application. If the Authorizations ■ 8. Following § 2.629, an undesignated
Commission decides, under center heading and §§ 2.641, 2.643,
§ 2.101(a)(2), to determine the ■ 6. In § 2.600, the introductory text is
revised, and a new paragraph (d) is 2.645, and 2.649 are added and § 2.647
acceptability of the application based on is reserved to read as follows:
its technical adequacy as well as added to read as follows:
completeness, the notice must be issued § 2.600 Scope of subpart. Phased Applications Involving Limited
as soon as practicable after the Work Authorizations
This subpart prescribes procedures
application has been tendered. applicable to licensing proceedings Sec.
* * * * * which involve an early submittal of site 2.641 Filing fees.
suitability information in accordance 2.643 Acceptance and docketing of
(c)(1) The Secretary will transmit a application for limited work
notice of hearing on an application for with § 2.101(a–1), and a hearing and
authorization.
a license for a production or utilization early partial decision on issues of site
2.645 Notice of hearing.
facility, including a limited work suitability, in connection with an 2.647 [Reserved]
authorization, early site permit, application for a permit to construct a 2.649 Partial decisions on limited work
combined license, but not for a utilization facility which is subject to authorization.
manufacturing license, for a license for § 51.20(b) of this chapter and is of the
type specified in § 50.21(b)(2) or (3) or § 2.641 Filing fees.
receipt of waste radioactive material
from other persons for the purpose of § 50.22 of this chapter or is a testing Each application which contains a
commercial disposal by the waste facility. This subpart also prescribes request for limited work authorization
disposal licensee, for a license under procedures applicable to proceedings under the procedures of § 2.101(a)(9)
part 61 of this chapter, for a for a construction permit for a and this subpart shall be accompanied
construction authorization for a high- utilization facility which is subject to by any fee required by § 50.30(e) and
level waste repository at a geologic § 51.20(b) of this chapter and is of the part 170 of this chapter.
repository operations area under parts type specified in § 50.21(b)(2) or (3) or
§ 50.22 of this chapter, or proceedings § 2.643 Acceptance and docketing of
60 or 63 of this chapter, for a license to application for limited work authorization.
receive and possess high-level for a combined license under part 52 of
this chapter, either of which includes a (a) Each part of an application
radioactive waste at a geologic
request to conduct the activities submitted in accordance with
repository operations area under parts
authorized under § 50.10(d) of part 50 of § 2.101(a)(9) will be initially treated as
60 or 63 of this chapter, and for a
this chapter in advance of issuance of a tendered application. If it is
license under part 72 of this chapter to
the construction permit or combined determined that any one of the parts as
acquire, receive or possess spent fuel for
license, and submits an application in described in § 2.101(a)(9) is incomplete
the purpose of storage in an
accordance with § 2.101(a)(9). and not acceptable for processing, the
independent spent fuel storage
* * * * * Director of New Reactors or the Director
installation (ISFSI) to the governor or
(d) The procedures in §§ 2.641 of Nuclear Reactor Regulation will
other appropriate official of the State
through 2.649 apply to phased inform the applicant of this
and to the chief executive of the
applications for construction permits or determination and the respects in which
municipality in which the facility is to
combined licenses which request the document is deficient. A
be located or the activity is to be
limited work authorizations to be issued determination of completeness will
conducted or, if the facility is not to be
in advance of issuance of the generally be made within a period of 30
located or the activity conducted within
construction permit or combined license days.
a municipality, to the chief executive of
(i.e., a phased application). (b) The Director will accept for
the county (or to the Tribal organization,
■ 7. In § 2.606, paragraph (a) is revised
docketing part one of an application for
if it is to be located or conducted within
to read as follows: a construction permit for a utilization
an Indian reservation).
facility which is subject to § 51.20(b) of
* * * * * § 2.606 Partial decision on site suitability this chapter and is of the type specified
issues. in § 50.21(b)(2) or (3) or § 50.22 of this
■ 5. The heading of subpart F is revised
to read as follows: (a) The provisions of §§ 2.331, 2.339, chapter or an application for a
2.340(b), 2.343, 2.712, and 2.713 apply combined license where part one of the
1 If the notice of hearing concerning an to any partial initial decision rendered application as described in § 2.101(a)(9)
application for a limited work authorization, in accordance with this subpart. Section is complete. Part one will not be
construction permit, early site permit, or combined 2.340(c) does not apply to any partial considered complete unless it contains
license for a facility of the type described in initial decision rendered in accordance the information required by
§§ 50.21(b) or 50.22 of this chapter or a testing
facility does not specify the time and place of initial
with this subpart. No construction § 50.10(d)(3) of this chapter. Upon
permit or combined license may be assignment of a docket number, the
hearing, a subsequent notice will be published in

the Federal Register which will provide at least 30 issued without completion of the full procedures in § 2.101(a)(3) and (4)
days notice of the time and place of that hearing. review required by Section 102(2) of the relating to formal docketing and the
After this notice is given, the presiding officer may
reschedule the commencement of the initial hearing
NEPA, as amended, and subpart A of submission and distribution of
for a later date or reconvene a recessed hearing part 51 of this chapter. The authority of additional copies of the application
without again providing at least 30 days notice. the Commission to review such a partial must be followed.
(c) If part one of the application is interested State under § 2.315(c) and for of a construction permit or combined
docketed, the Director will cause to be limited appearances under § 2.315(a). license.
published in the Federal Register and (c) Any person who was permitted to
send to the Governor or other intervene under the initial notice of PART 50—DOMESTIC LICENSING OF
appropriate official of the State in which hearing on the limited work PRODUCTION AND UTILIZATION
the site is located, a notice of docketing authorization and who was not FACILITIES
of the application which states the dismissed or did not withdraw as a
purpose of the application, states the party, may continue to participate as a ■ 9. The authority citation for part 50
location of the proposed site, states that party with respect to the remaining continues to read as follows:
a notice of hearing will be published, unresolved issues only if, within the Authority: Secs. 102, 103, 104, 105, 161,
and requests comments on the limited time prescribed for filing of petitions for 182, 183, 186, 189, 68 Stat. 936, 937, 938,
work authorization from Federal, State, leave to intervene in the supplementary 948, 953, 954, 955, 956, as amended, sec.
and local agencies and interested notice of hearing, that person files a 234, 83 Stat. 444, as amended (42 U.S.C.
2132, 2133, 2134, 2135, 2201, 2232, 2233,
persons. The notice will state that petition for intervention which meets
2236, 2239, 2282); secs. 201, as amended,
comments must be submitted to the the applicable requirements in subpart 202, 206, 88 Stat. 1242, as amended, 1244,
NRC within 60 days or such other time C of this part, including § 2.309, 1246 (42 U.S.C. 5841, 5842, 5846); sec. 1704,
as may be specified in the notice. provided, however, that the petition 112 Stat. 2750 (44 U.S.C. 3504 note). Section
(d) Part two of the application will be need not address § 2.309(d). However, a 50.7 also issued under Pub. L. 95–601, sec.
docketed upon a determination by the person who was granted discretionary 10, 92 Stat. 2951 (42 U.S.C. 5841). Section
Director that it is complete. intervention under § 2.309(e) must 50.10 also issued under secs. 101, 185, 68
address in its petition the factors in Stat. 955, as amended (42 U.S.C. 2131, 2235);
(e) If part two of the application is sec. 102, Pub. L. 91–190, 83 Stat. 853 (42
docketed, the Director will cause to be § 2.309(e) as they apply to the
U.S.C. 4332). Sections 50.13, 50.54(dd), and
published in the Federal Register and supplementary hearing.
50.103 also issued under sec. 108, 68 Stat.
sent to the Governor or other (d) A party who files a non-timely 939, as amended (42 U.S.C. 2138).
appropriate official of the State in which petition for intervention under Sections 50.23, 50.35, 50.55, and 50.56 also
the site is located, a notice of docketing paragraph (b) of this section to continue issued under sec. 185, 68 Stat. 955 (42 U.S.C.
of part two of the application which as a party may be dismissed from the 2235). Sections 50.33a, 50.55a and Appendix
states the purpose of the application, proceeding, absent a determination that Q also issued under sec. 102, Pub. L. 91–190,
states that a notice of hearing will be the party has made a substantial 83 Stat. 853 (42 U.S.C. 4332). Sections 50.34
showing of good cause for failure to file and 50.54 also issued under sec. 204, 88 Stat.
published, and requests comments on 1245 (42 U.S.C. 5844). Sections 50.58, 50.91,
the construction permit or combined on time, and with particular reference to
and 50.92 also issued under Pub. L. 97–415,
license application, as applicable, from the factors specified in §§ 2.309(c)(1)(i)
96 Stat. 2073 (42 U.S.C. 2239). Section 50.78
Federal, State, and local agencies and through (iv) and 2.309(d). The notice also issued under sec. 122, 68 Stat. 939 (42
interested persons. The notice will state will be ruled upon by the Commission U.S.C. 2152). Sections 50.80–50.81 also
that comments must be submitted to the or presiding officer designated to rule issued under sec. 184, 68 Stat. 954, as
NRC within 60 days or such other time on petitions for leave to intervene. amended (42 U.S.C. 2234). Appendix F also
as may be specified in the notice. (e) To the maximum extent issued under sec. 187, 68 Stat. 955 (42 U.S.C.
practicable, the membership of the 2237).
§ 2.645 Notice of hearing. Atomic Safety and Licensing Board, or
■ 10. Section 50.10 is revised to read as
(a) The notice of hearing on part one the individual presiding officer, as
follows:
of the application must set forth the applicable, designated to preside in the
matters of fact and law to be considered, proceeding on the remaining unresolved § 50.10 License required; limited work
as required by § 2.104, which will be issues under the supplemental notice of authorization.
modified to state that the hearing will hearing will be the same as the (a) Definitions. As used in this
relate only to the matters related to membership or individual designated to section, construction means the
§ 50.33(a) through (f) of this chapter, preside in the initial notice of hearing. activities in paragraph (a)(1) of this
and the limited work authorization. § 2.647 [Reserved] section, and does not mean the activities
(b) After docketing of part two of the in paragraph (a)(2) of this section.
application, as provided in § 2.649 Partial decisions on limited work (1) Activities constituting
§§ 2.101(a)(9) and 2.643(d), a authorization. construction are the driving of piles,
supplementary notice of hearing will be The provisions of §§ 2.331, 2.339, subsurface preparation, placement of
published under § 2.104 with respect to 2.340(b), 2.343, 2.712, and 2.713 apply backfill, concrete, or permanent
the remaining unresolved issues in the to any partial initial decision rendered retaining walls within an excavation,
proceeding within the scope of § 2.104. in accordance with this subpart. Section installation of foundations, or in-place
The supplementary notice of hearing 2.340(c) does not apply to any partial assembly, erection, fabrication, or
will provide that any person whose initial decision rendered in accordance testing, which are for:
interest may be affected by the with this subpart. A limited work (i) Safety-related structures, systems,
proceeding and who desires to authorization may not be issued under or components (SSCs) of a facility, as
participate as a party in the resolution 10 CFR 50.10(d) without completion of defined in 10 CFR 50.2;
of the remaining issues shall, file a the review for limited work (ii) SSCs relied upon to mitigate
petition for leave to intervene within the authorizations required by subpart A of accidents or transients or used in plant
time prescribed in the notice. The part 51 of this chapter. The authority of emergency operating procedures;
petition to intervene must meet the the Commission to review such a partial (iii) SSCs whose failure could prevent
applicable requirements in subpart C of initial decision sua sponte, or to raise safety-related SSCs from fulfilling their
this part, including § 2.309. This sua sponte an issue that has not been safety-related function;
supplementary notice will also provide raised by the parties, will be exercised (iv) SSCs whose failure could cause a
appropriate opportunities for within the same time as in the case of reactor scram or actuation of a safety-
participation by a representative of an a full decision relating to the issuance related system;
(v) SSCs necessary to comply with 10 transfer or receive in interstate conducted in compliance with the
CFR part 73; commerce, manufacture, produce, technically-relevant Commission
(vi) SSCs necessary to comply with 10 transfer, acquire, possess, or use any requirements in 10 CFR Chapter I
CFR 50.48 and criterion 3 of 10 CFR part production or utilization facility except applicable to the design of those
50, appendix A; and as authorized by a license issued by the portions of the facility within the scope
(vii) Onsite emergency facilities, that Commission. of the limited work authorization;
is, technical support and operations (c) Requirement for construction (ii) An environmental report in
support centers, necessary to comply permit, early site permit authorizing accordance with § 51.49 of this chapter;
with 10 CFR 50.47 and 10 CFR part 50, limited work authorization activities, and
appendix E. combined license, or limited work (iii) A plan for redress of activities
(2) Construction does not include: authorization. No person may begin the performed under the limited work
(i) Changes for temporary use of the construction of a production or authorization, should limited work
land for public recreational purposes; utilization facility on a site on which activities be terminated by the holder or
(ii) Site exploration, including the facility is to be operated until that the limited work authorization be
necessary borings to determine person has been issued either a revoked by the NRC, or upon
foundation conditions or other construction permit under this part, a effectiveness of the Commission’s final
preconstruction monitoring to establish combined license under part 52 of this decision denying the associated
background information related to the chapter, an early site permit authorizing construction permit or combined license
suitability of the site, the environmental the activities under paragraph (d) of this application, as applicable.
impacts of construction or operation, or section, or a limited work authorization (e) Issuance of limited work
the protection of environmental values; under paragraph (d) of this section. authorization. (1) The Director of New
(iii) Preparation of a site for (d) Request for limited work Reactors or the Director of Nuclear
construction of a facility, including authorization. (1) Any person to whom Reactor Regulation may issue a limited
clearing of the site, grading, installation the Commission may otherwise issue work authorization only after:
of drainage, erosion and other either a license or permit under Sections (i) The NRC staff issues the final
environmental mitigation measures, and 103, 104.b, or 185 of the Act for a environmental impact statement for the
construction of temporary roads and facility of the type specified in limited work authorization in
borrow areas; §§ 50.21(b)(2), (b)(3), or 50.22 of this accordance with subpart A of part 51 of
(iv) Erection of fences and other chapter, or a testing facility, may request this chapter;
access control measures; a limited work authorization allowing (ii) The presiding officer makes the
(v) Excavation; that person to perform the driving of finding in § 51.105(c) or § 51.107(d) of
(vi) Erection of support buildings piles, subsurface preparation, placement this chapter, as applicable;
(such as, construction equipment of backfill, concrete, or permanent (iii) The Director determines that the
storage sheds, warehouse and shop retaining walls within an excavation, applicable standards and requirements
facilities, utilities, concrete mixing installation of the foundation, including of the Act, and the Commission’s
plants, docking and unloading facilities, placement of concrete, any of which are regulations applicable to the activities to
and office buildings) for use in for an SSC of the facility for which be conducted under the limited work
connection with the construction of the either a construction permit or authorization, have been met. The
facility; combined license is otherwise required applicant is technically qualified to
(vii) Building of service facilities, under paragraph (c) of this section. engage in the activities authorized.
such as paved roads, parking lots, (2) An application for a limited work Issuance of the limited work
railroad spurs, exterior utility and authorization may be submitted as part authorization will provide reasonable
lighting systems, potable water systems, of a complete application for a assurance of adequate protection to
sanitary sewerage treatment facilities, construction permit or combined license public health and safety and will not be
and transmission lines; in accordance with 10 CFR 2.101(a)(1) inimical to the common defense and
(viii) Procurement or fabrication of through (a)(5), or as a partial application security; and
components or portions of the proposed in accordance with 10 CFR 2.101(a)(9). (iv) The presiding officer finds that
facility occurring at other than the final, An application for a limited work there are no unresolved safety issues
in-place location at the facility; authorization must be submitted by an relating to the activities to be conducted
(ix) Manufacture of a nuclear power applicant for or holder of an early site under the limited work authorization
reactor under a manufacturing license permit as a complete application in that would constitute good cause for
under subpart F of part 52 of this accordance with 10 CFR 2.101(a)(1) withholding the authorization.
chapter to be installed at the proposed through (a)(4). (2) Each limited work authorization
site and to be part of the proposed (3) The application must include: will specify the activities that the holder
facility; or (i) A safety analysis report required by is authorized to perform.
(x) With respect to production or 10 CFR 50.34, 10 CFR 52.17 or 10 CFR (f) Effect of limited work
utilization facilities, other than testing 52.79 of this chapter, as applicable, a authorization. Any activities
facilities and nuclear power plants, description of the activities requested to undertaken under a limited work
required to be licensed under Section be performed, and the design and authorization are entirely at the risk of
104.a or Section 104.c of the Act, the construction information otherwise the applicant and, except as to the
erection of buildings which will be used required by the Commission’s rules and matters determined under paragraph
for activities other than operation of a regulations to be submitted for a (e)(1) of this section, the issuance of the
facility and which may also be used to construction permit or combined limited work authorization has no
house a facility (e.g., the construction of license, but limited to those portions of bearing on the issuance of a
a college laboratory building with space the facility that are within the scope of construction permit or combined license
for installation of a training reactor). the limited work authorization. The with respect to the requirements of the
(b) Requirement for license. Except as safety analysis report must demonstrate Act, and rules, regulations, or orders
provided in § 50.11 of this chapter, no that activities conducted under the issued under the Act. The
person within the United States shall limited work authorization will be environmental impact statement for a
construction permit or combined license (1) Activities constituting (ix) Manufacture of a nuclear power
application for which a limited work construction are the driving of piles, reactor under a manufacturing license
authorization was previously issued subsurface preparation, placement of under subpart F of part 52 of this
will not address, and the presiding backfill, concrete, or permanent chapter to be installed at the proposed
officer will not consider, the sunk costs retaining walls within an excavation, site and to be part of the proposed
of the holder of limited work installation of foundations, or in-place facility; or
authorization in determining the assembly, erection, fabrication, or (x) With respect to production or
proposed action (i.e., issuance of the testing, which are for: utilization facilities, other than testing
construction permit or combined (i) Safety-related structures, systems, facilities and nuclear power plants,
license). or components (SSCs) of a facility, as required to be licensed under Section
(g) Implementation of redress plan. If defined in 10 CFR 50.2; 104.a or Section 104.c of the Act, the
construction is terminated by the (ii) SSCs relied upon to mitigate erection of buildings which will be used
holder, the underlying application is accidents or transients or used in plant for activities other than operation of a
withdrawn by the applicant or denied emergency operating procedures; facility and which may also be used to
by the NRC, or the limited work (iii) SSCs whose failure could prevent house a facility (e.g., the construction of
authorization is revoked by the NRC, safety-related SSCs from fulfilling their a college laboratory building with space
then the holder must begin safety-related function; for installation of a training reactor).
implementation of the redress plan in a (iv) SSCs whose failure could cause a * * * * *
reasonable time. The holder must also reactor scram or actuation of a safety- ■ 13. In § 51.17, paragraph (b) is revised
complete the redress of the site no later related system; to read as follows:
than 18 months after termination of (v) SSCs necessary to comply with 10
construction, revocation of the limited CFR part 73; § 51.17 Information collection
work authorization, or upon (vi) SSCs necessary to comply with 10 requirements; OMB approval.
effectiveness of the Commission’s final CFR 50.48 and criterion 3 of 10 CFR part * * * * *
decision denying the associated 50, appendix A; and (b) The approved information
construction permit application or the (vii) Onsite emergency facilities (i.e., collection requirements in this part
underlying combined license technical support and operations appear in §§ 51.6, 51.16, 51.41, 51.45,
application, as applicable. support centers), necessary to comply 51.49, 51.50, 51.51, 51.52, 51.53, 51.54,
with 10 CFR 50.47 and 10 CFR part 50, 51.55, 51.58, 51.60, 51.61, 51.62, 51.66,
PART 51—ENVIRONMENTAL appendix E. 51.68, and 51.69.
PROTECTION REGULATIONS FOR (2) Construction does not include: ■ 14. In § 51.45, paragraph (c) is revised
DOMESTIC LICENSING AND RELATED (i) Changes for temporary use of the to read as follows:
REGULATORY FUNCTIONS land for public recreational purposes;
(ii) Site exploration, including § 51.45 Environmental report.
■ 11. The authority citation for part 51 necessary borings to determine * * * * *
continues to read as follows: foundation conditions or other (c) Analysis. The environmental
Authority: Sec. 161, 68 Stat. 948, as preconstruction monitoring to establish report must include an analysis that
amended, sec. 1701, 106 Stat. 2951, 2952, background information related to the considers and balances the
2953 (42 U.S.C. 2201, 2297f); secs. 201, as suitability of the site, the environmental environmental effects of the proposed
amended, 202, 88 Stat. 1242, as amended, impacts of construction or operation, or action, the environmental impacts of
1244 (42 U.S.C. 5841, 5842); sec. 1704, 112 the protection of environmental values; alternatives to the proposed action, and
Stat. 2750 (44 U.S.C. 3504 note). Subpart A (iii) Preparation of a site for alternatives available for reducing or
also issued under National Environmental avoiding adverse environmental effects.
Policy Act of 1969, secs. 102, 104, 105, 83
construction of a facility, including
clearing of the site, grading, installation An environmental report prepared at the
Stat. 853–854, as amended (42 U.S.C. 4332,
4334, 4335); and Pub. L. 95–604, Title II, 92 of drainage, erosion and other early site permit stage under § 51.50(b),
Stat. 3033–3041; and sec. 193, Pub. L. 101– environmental mitigation measures, and construction permit stage under
575, 104 Stat. 2835 (42 U.S.C. 2243). Sections construction of temporary roads and § 51.50(a), or combined license stage
51.20, 51.30, 51.60, 51.80, and 51.97 also borrow areas; under § 51.50(c) must include a
issued under secs. 135, 141, Pub. L. 97–425, (iv) Erection of fences and other description of impacts of the
96 Stat. 2232, 2241, and sec. 148, Pub. L. access control measures; preconstruction activities performed by
100–203, 101 Stat. 1330–223 (42 U.S.C. (v) Excavation; the applicant (i.e., those activities listed
10155, 10161, 10168). Section 51.22 also in paragraph (b)(1) through (b)(8) in the
issued under sec. 274, 73 Stat. 688, as
(vi) Erection of support buildings
amended by 92 Stat. 3036–3038 (42 U.S.C. (such as, construction equipment definition of construction contained in
2021) and under Nuclear Waste Policy Act of storage sheds, warehouse and shop § 51.4) necessary to support the
1982, sec. 121, 96 Stat. 2228 (42 U.S.C. facilities, utilities, concrete mixing construction and operation of the
10141). Sections 51.43, 51.67, and 51.109 plants, docking and unloading facilities, facility which is the subject of the
also issued under Nuclear Waste Policy Act and office buildings) for use in limited work authorization,
of 1982, sec. 114(f), 96 Stat. 2216, as connection with the construction of the construction permit, or combined
amended (42 U.S.C. 10134(f)). facility; license application. The environmental
■ 12. In § 51.4, a new definition of (vii) Building of service facilities, report must also contain an analysis of
‘‘construction’’ is added to read as such as paved roads, parking lots, the cumulative impacts of the activities
follows: railroad spurs, exterior utility and to be authorized by the limited work
lighting systems, potable water systems, authorization, construction permit, or
§ 51.4 Definitions. sanitary sewerage treatment facilities, combined license in light of the
* * * * * transmission lines; preconstruction impacts described in

Construction means the activities in (viii) Procurement or fabrication of the environmental report. Except for an
paragraph (1) of this definition, and components or portions of the proposed environmental report prepared at the
does not mean the activities in facility occurring at other than the final, early site permit stage, or an
paragraph (2) of this definition. in-place location at the facility; environmental report prepared at the
license renewal stage under § 51.53(c), measures that could be employed by the applicant to further reduce
the analysis in the environmental report applicant to further reduce environmental impacts; and
should also include consideration of the environmental impacts. (4) Any new and significant
economic, technical, and other benefits (b) Phased application for limited information for issues related to the
and costs of the proposed action and its work authorization and construction impacts of construction of the facility
alternatives. Environmental reports permit or combined license. If the that were resolved in the early site
prepared at the license renewal stage construction permit or combined license permit proceeding with respect to the
under § 51.53(c) need not discuss the application is filed in accordance with environmental impacts of the activities
economic or technical benefits and costs § 2.101(a)(9) of this chapter, then the to be conducted under the limited work
of either the proposed action or environmental report for part one of the authorization.
alternatives except if these benefits and application may be limited to a (5) A description of the process used
costs are either essential for a discussion of the activities proposed to to identify new and significant
determination regarding the inclusion of be conducted under the limited work information regarding NRC’s
an alternative in the range of authorization. If the scope of the conclusions in the early site permit
alternatives considered or relevant to environmental report for part one is so environmental impact statement. The
mitigation. In addition, environmental limited, then part two of the application process must be a reasonable
reports prepared under § 51.53(c) need must include the information required methodology for identifying this new
not discuss issues not related to the by § 51.50, as applicable. and significant information.
environmental effects of the proposed (e) Limited work authorization for a
(c) Limited work authorization
action and its alternatives. The analyses site where an environmental impact
submitted as part of an early site permit
for environmental reports shall, to the statement was prepared, but the facility
application. Each applicant for an early
fullest extent practicable, quantify the construction was not completed. If the
site permit under subpart A of part 52
various factors considered. To the extent limited work authorization is for
of this chapter requesting a limited work
that there are important qualitative activities to be conducted at a site for
authorization shall submit with its
considerations or factors that cannot be which the Commission has previously
application the environmental report
quantified, those considerations or prepared an environmental impact
required by § 51.50(b). Each
factors shall be discussed in qualitative statement for the construction and
environmental report must contain the
terms. The environmental report should operation of a nuclear power plant, and
following information: a construction permit was issued but
contain sufficient data to aid the (1) A description of the activities
Commission in its development of an construction of the plant was never
proposed to be conducted under the completed, then the applicant’s
independent analysis. limited work authorization;
* * * * * environmental report may incorporate
(2) A statement of the need for the by reference the earlier environmental
■ 15. A new § 51.49 is added under the activities; and impact statement. In the event of such
heading Environmental Reports- (3) A description of the environmental referencing, the environmental report
Production and Utilization Facilities to impacts that may reasonably be must identify:
read as follows: expected to result from the activities, (1) Any new and significant
§ 51.49 Environmental report—limited
the mitigation measures that the information material to issues related to
work authorization. applicant proposes to implement to the impacts of construction of the
(a) Limited work authorization achieve the level of environmental facility that were resolved in the
submitted as part of complete impacts described, and a discussion of construction permit proceeding for the
construction permit or combined license the reasons for rejecting mitigation matters required to be addressed in
application. Each applicant for a measures that could be employed by the paragraph (a) of this section; and
construction permit or combined license applicant to further reduce (2) A description of the process used
applying for a limited work environmental impacts. to identify new and significant
authorization under § 50.10(d) of this (d) Limited work authorization information regarding the NRC’s
chapter in a complete application under request submitted by early site permit conclusions in the construction permit
10 CFR 2.101(a)(1) through (a)(4), shall holder. Each holder of an early site environmental impact statement. The
submit with its application a separate permit requesting a limited work process must use a reasonable
document, entitled, ‘‘Applicant’s authorization shall submit with its methodology for identifying this new
Environmental Report—Limited Work application a document entitled, and significant information.
Authorization Stage,’’ which is in ‘‘Applicant’s Environmental Report— (f) Environmental Report. An
addition to the environmental report Limited Work Authorization under environmental report submitted in
required by § 51.50 of this part. Each Early Site Permit,’’ containing the accordance with this section must
environmental report must also contain following information: separately evaluate the environmental
the following information: (1) A description of the activities impacts and proposed alternatives
(1) A description of the activities proposed to be conducted under the attributable to the activities proposed to
proposed to be conducted under the limited work authorization; be conducted under the limited work
limited work authorization; (2) A statement of the need for the authorization. At the option of the
(2) A statement of the need for the activities; applicant, the ‘‘Applicant’s
activities; and (3) A description of the environmental Environmental Report—Limited Work
(3) A description of the environmental impacts that may reasonably be Authorization Stage,’’ may contain the
impacts that may reasonably be expected to result from the activities, information required to be submitted in
expected to result from the activities, the mitigation measures that the the environmental report required under
the mitigation measures that the applicant proposes to implement to § 51.50, which addresses the impacts of
applicant proposes to implement to achieve the level of environmental construction and operation for the
achieve the level of environmental impacts described, and a discussion of proposed facility (including the
impacts described, and a discussion of the reasons for rejecting mitigation environmental impacts attributable to
the reasons for rejecting mitigation measures that could be employed by the the limited work authorization), and
discusses the overall costs and benefits be prepared in accordance with statement for the construction and
balancing for the proposed action. § 51.75(a) or (c), as applicable. Siting operation of a nuclear power plant, and
■ 16. In § 51.71, paragraph (e) is issues, including whether there is an a construction permit was issued but
redesignated as paragraph (f), and a new obviously superior alternative site, or construction of the plant was not
paragraph (e) is added to read as issues related to operation of the completed, then the draft environmental
follows: proposed nuclear power plant at the impact statement shall incorporate by
site, including need for power, may not reference the earlier environmental
§ 51.71 Draft environmental impact be considered. After part two of the impact statement. The draft
statement—contents. application is docketed, the NRC will environmental impact statement must
* * * * * prepare a draft supplement to the final be limited to a consideration of whether
(e) Effect of limited work environmental impact statement for part there is significant new information
authorization. If a limited work two of the application under § 51.72. No with respect to the environmental
authorization was issued either in updating of the information contained impacts of construction, relevant to the
connection with or subsequent to an in the final environmental impact activities to be conducted under the
early site permit, or in connection with statement prepared for part one is limited work authority, so that the
a construction permit or combined necessary in preparation of the conclusion of the referenced
license application, then the supplemental environmental impact environmental impact statement on the
environmental impact statement for the statement. The draft supplement must impacts of construction would, when
construction permit or combined license consider all environmental impacts analyzed in accordance with § 51.71,
application will not address or consider associated with the prior issuance of the lead to the conclusion that the limited
the sunk costs associated with the limited work authorization, but may not work authorization should not be issued
limited work authorization. address or consider the sunk costs or should be issued with appropriate
* * * * * associated with the limited work conditions.
■ 17. Section 51.76 is added to read as authorization. (f) Draft environmental impact
follows: (c) Limited work authorization statement. A draft environmental
submitted as part of an early site permit impact statement prepared under this
§ 51.76 Draft environmental impact application. If the application for a section must separately evaluate the
statement—limited work authorization. limited work authorization is submitted environmental impacts and proposed
The NRC will prepare a draft as part of an application for an early site alternatives attributable to the activities
environmental impact statement relating permit, then the NRC will prepare an proposed to be conducted under the
to issuance of a limited work environmental impact statement in limited work authorization. However, if
authorization in accordance with the accordance with § 51.75(b). However, the ‘‘Applicant’s Environmental
procedures and measures described in the analysis called for by § 51.71(d) Report—Limited Work Authorization
§§ 51.70, 51.71, and 51.73, as further must also address the activities Stage,’’ also contains the information
supplemented or modified in the proposed to be conducted under the required to be submitted in the
following paragraphs. limited work authorization. environmental report required under
(a) Limited work authorization (d) Limited work authorization § 51.50, then the environmental impact
submitted as part of complete request submitted by an early site statement must address the impacts of
construction permit or combined license permit holder. If the application for a construction and operation for the
application. If the application for a limited work authorization is submitted proposed facility (including the
limited work authorization is submitted by a holder of an early site permit, then environmental impacts attributable to
as part of a complete construction the NRC will prepare a draft supplement the limited work authorization), and
permit or combined license application, to the environmental impact statement discuss the overall costs and benefits
then the NRC may prepare a partial draft for the early site permit. The balancing for the underlying proposed
environmental impact statement. The supplement is limited to consideration action, in accordance with § 51.71, and
analysis called for by § 51.71(d) must be of the activities proposed to be § 51.75(a) or (c), as applicable.
limited to the activities proposed to be conducted under the limited work ■ 18. In § 51.103, a new paragraph (a)(6)
conducted under the limited work authorization, the adequacy of the is added to read as follows:
authorization. Alternatively, the NRC proposed redress plan, and whether
may prepare a complete draft there is new and significant information § 51.103 Record of decision—general.
environmental impact statement identified with respect to issues related (a) * * *
prepared in accordance with § 51.75(a) to the impacts of construction of the (6) In a construction permit or a
or (c), as applicable. facility that were resolved in the early combined license proceeding where a
(b) Phased application for limited site permit proceeding with respect to limited work authorization under 10
work authorization under § 2.101(a)(9) the environmental impacts of the CFR 50.10 was issued, the
of this chapter. If the application for a activities to be conducted under the Commission’s decision on the
limited work authorization is submitted limited work authorization. No other construction permit or combined license
in accordance with § 2.101(a)(9) of this updating of the information contained application will not address or consider
chapter, then the draft environmental in the final environmental impact the sunk costs associated with the
impact statement for part one of the statement prepared for the early site limited work authorization in
application may be limited to permit is required. determining the proposed action.
consideration of the activities proposed (e) Limited work authorization for a * * * * *
to be conducted under the limited work site where an environmental impact ■ 19. In § 51.104, a new paragraph (c) is
authorization, and the proposed redress statement was prepared, but the facility
added to read as follows:

plan. However, if the environmental construction was not completed. If the
report contains the full set of limited work authorization is for § 51.104 NRC proceeding using public
information required to be submitted activities to be conducted at a site for hearings; consideration of environmental
under § 51.50(a) or (c), then a draft which the Commission has previously impact statement.
environmental impact statement must prepared an environmental impact * * * * *
(c) In any proceeding in which a limited work authorization should be (iv) In an uncontested proceeding,
limited work authorization is requested, issued as proposed. determine whether the NEPA review
unless the Commission orders (2) If the limited work authorization is conducted by the NRC staff for the
otherwise, a party to the proceeding for activities to be conducted at a site for limited work authorization has been
may take a position and offer evidence which the Commission has previously adequate; and
only on the aspects of the proposed prepared an environmental impact (v) In a contested proceeding,
action within the scope of NEPA and statement for the construction and determine whether, in accordance with
this subpart which are within the scope operation of a nuclear power plant, and the regulations in this subpart, the
of that party’s admitted contention, in a construction permit was issued but limited work authorization should be
accordance with the provisions of part construction of the plant was never issued as proposed by the Director of
2 of this chapter applicable to the completed, then in making the New Reactors or the Director of Nuclear
limited work authorization or in determinations in paragraph (c)(1) of Reactor Regulation, as applicable.
accordance with the terms of any notice this section, the presiding officer shall (2) If the limited work authorization is
of hearing applicable to the limited be limited to a consideration whether for activities to be conducted at a site for
work authorization. In the proceeding, there is, with respect to construction which the Commission has previously
the presiding officer will decide all activities encompassed by the prepared an environmental impact
matters in controversy among the environmental impact statement which statement for the construction and
parties. are analogous to the activities to be operation of a nuclear power plant, and
■ 20. The heading of § 51.105 is revised, conducted under the limited work a construction permit was issued but
and a new paragraph (c) is added to read authorization, new and significant construction of the plant was never
as follows: information on the environmental completed, then in making the
impacts of those activities, such that the determinations in paragraph (c)(1) of
§ 51.105 Public hearings in proceedings limited work authorization should not this section, the presiding officer shall
for issuance of construction permits or be issued as proposed. be limited to a consideration whether
early site permits; limited work there is, with respect to construction
(3) The presiding officer’s
authorizations. activities encompassed by the
determination in this paragraph shall be
* * * * * made in a partial initial decision to be environmental impact statement which
(c)(1) In addition to complying with issued separately from, and in advance are analogous to the activities to be
the applicable provisions of § 51.104, in of, the presiding officer’s decision in conducted under the limited work
any proceeding for the issuance of a paragraph (a) of this section. authorization, new and significant
construction permit for a nuclear power information on the environmental
■ 21. In § 51.107, the heading is revised,
plant or an early site permit under part impacts of those activities, so that the
and a new paragraph (d) is added to
52 of this chapter, where the applicant limited work authorization should not
read as follows:
requests a limited work authorization be issued as proposed by the Director of
under § 50.10(d) of this chapter, the § 51.107 Public hearings in proceedings New Reactors or the Director of Nuclear
presiding officer shall— for issuance of combined licenses; limited Reactor Regulation, as applicable.
(i) Determine whether the work authorizations. (3) In making the determination
requirements of Section 102(2)(A), (C), * * * * * required by this section, the presiding
and (E) of NEPA and the regulations in (d)(1) In any proceeding for the officer may not address or consider the
the subpart have been met, with respect issuance of a combined license where sunk costs associated with the limited
to the activities to be conducted under the applicant requests a limited work work authorization.
the limited work authorization; authorization under § 50.10(d) of this (4) The presiding officer’s
(ii) Independently consider the chapter, the presiding officer, in determination in this paragraph shall be
balance among conflicting factors with addition to complying with any made in a partial initial decision to be
respect to the limited work applicable provision of § 51.104, shall: issued separately from, and in advance
authorization which is contained in the (i) Determine whether the of, the presiding officer’s decision in
record of the proceeding, with a view to requirements of Section 102(2)(A), (C), paragraph (a) of this section on the
determining the appropriate action to be and (E) of NEPA and the regulations in combined license.
taken; this subpart have been met, with respect
PART 52—LICENSES,
(iii) Determine whether the redress to the activities to be conducted under
CERTIFICATIONS, AND APPROVALS
plan will adequately redress the the limited work authorization;
FOR NUCLEAR POWER PLANTS
activities performed under the limited (ii) Independently consider the
work authorization, should limited balance among conflicting factors with ■ 22. The authority citation for part 52
work activities be terminated by the respect to the limited work continues to read as follows:
holder or the limited work authorization authorization which is contained in the
Authority: Secs. 103, 104, 161, 182, 183,
be revoked by the NRC, or upon record of the proceeding, with a view to 185, 186, 189, 68 Stat. 936, 948, 953, 954,
effectiveness of the Commission’s final determining the appropriate action to be 955, 956, as amended, sec. 234, 83 Stat. 444,
decision denying the associated taken; as amended (42 U.S.C. 2133, 2201, 2232,
construction permit or early site permit, (iii) Determine whether the redress 2233, 2235, 2236, 2239, 2282); secs. 201, 202,
as applicable; plan will adequately redress the 206, 88 Stat. 1242, 1244, 1246, as amended
(iv) In an uncontested proceeding, activities performed under the limited (42 U.S.C. 5841, 5842, 5846); sec. 1704, 112
determine whether the NEPA review work authorization, should limited Stat. 2750 (44 U.S.C. 3504 note).
conducted by the NRC staff for the work activities be terminated by the ■ 23. In § 52.1(a), the definition for
limited work authorization has been holder or the limited work authorization ‘‘Limited work authorization’’ is added
adequate; and be revoked by the NRC, or upon to read as follows:
(v) In a contested proceeding, effectiveness of the Commission’s final
determine whether, in accordance with decision denying the combined license § 52.1 Definitions.
the regulations in this subpart, the application; (a) * * *
Limited work authorization means the limited work authorization under 10 § 52.99 Inspection during construction.
authorization provided by the Director CFR 50.10 is not requested in (a) The licensee shall submit to the
of New Reactors or the Director of conjunction with the combined license NRC, no later that 1 year after issuance
Nuclear Reactor Regulation under application, or in accordance with of the combined license or at the start
§ 50.10 of this chapter. §§ 51.49 and 51.50(c) of this chapter if of construction as defined in 10 CFR
* * * * * a limited work authorization is 50.10(a), whichever is later, its schedule
■ 24. In § 52.17, paragraph (c) is revised requested in conjunction with the for completing the inspections, tests, or
to read as follows: combined license application. analyses in the ITAAC. The licensee
(c) If the applicant wishes to request shall submit updates to the ITAAC
§ 52.17 Contents of applications; technical schedules every 6 months thereafter
information. that a limited work authorization under
10 CFR 50.10 be issued before issuance and, within 1 year of its scheduled date
* * * * * for initial loading of fuel, the licensee
(c) An applicant may request that a of the combined license, the application
must include the information otherwise shall submit updates to the ITAAC
limited work authorization under 10 schedule every 30 days until the final
CFR 50.10 be issued in conjunction with required by 10 CFR 50.10, in accordance
with either 10 CFR 2.101(a)(1) through notification is provided to the NRC
the early site permit. The application under paragraph (c)(1) of this section.
must include the information otherwise (a)(4), or 10 CFR 2.101(a)(9).
* * * * *
required by 10 CFR 50.10(d)(3). ■ 28. Section 52.91 is revised to read as
Applications submitted before, and follows: PART 100—REACTOR SITE CRITERIA
pending as of November 8, 2007, must
include the information required by § 52.91 Authorization to conduct limited ■ 30. The authority citation for part 100
§ 52.17(c) effective on the date of work authorization activities. continues to read as follows:
docketing. (a) If the application does not Authority: Secs. 103, 104, 161, 182, 68
■ 25. In § 52.24, paragraph (c) is revised reference an early site permit which Stat. 936, 937, 948, 953, as amended (42
to read as follows: authorizes the holder to perform the U.S.C. 2133, 2134, 2201, 2232); secs. 201, as
activities under 10 CFR 50.10(d), the amended, 202, 88 Stat. 1242, as amended,
§ 52.24 Issuance of early site permit. 1244 (42 U.S.C. 5841, 5842); sec. 1704, 112
applicant may not perform those
* * * * * Stat. 2750 (44 U.S.C. 3504 note).
activities without obtaining the separate
(c) The early site permit shall specify
those 10 CFR 50.10 activities requested authorization required by 10 CFR ■ 31. In § 100.23, paragraph (b) is
under § 52.17(c) that the permit holder 50.10(d). Authorization may be granted revised to read as follows:
is authorized to perform. only after the presiding officer in the
proceeding on the application has made § 100.23 Geologic and seismic siting
■ 26. Section 52.27 is redesignated as criteria.
the findings and determination required
§ 52.26, and a new § 52.27 is added to * * * * *
by 10 CFR 50.10(e), and the Director of
read as follows: (b) Commencement of construction.
New Reactors or the Director of Nuclear
§ 52.27 Limited work authorization after Reactor Regulation makes the The investigations required in
issuance of early site permit. determination required by 10 CFR paragraph (c) of this section are not
A holder of an early site permit may 50.10(e). considered ‘‘construction’’ as defined in
request a limited work authorization in (b) If, after an applicant has performed 10 CFR 50.10(a).
accordance with § 50.10 of this chapter. the activities permitted by paragraph (a) * * * * *
■ 27. In § 52.80, paragraphs (b) and (c) of this section, the application for the Dated at Rockville, Maryland, this 25th day
are revised to read as follows: combined license is withdrawn or of September 2007.
denied, then the applicant shall For the Nuclear Regulatory Commission.
§ 52.80 Contents of applications;
additional technical information.
implement the approved site redress Annette L. Vietti-Cook,
plan. Secretary of the Commission.
* * * * *
(b) An environmental report, either in ■ 29. In § 52.99, paragraph (a) is revised [FR Doc. E7–19312 Filed 10–5–07; 8:45 am]
accordance with 10 CFR 51.50(c) if a to read as follows: BILLING CODE 7590–01–P

Rule: Production and Utilization Facilities Domestic Licensing: Nuclear Power Plants Construction Activities Limited Work Authorizations

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Tuesday,

5. Compliance With NEPA Secretary, U.S. Nuclear Regulatory Commission,

meeting on November 9, 2006, on the The NRC received 13 public

As explained above, this supplemental

Atomic Energy Act, but rather to implement the

1987); Kitchen v. Federal Communications The phased application and approval

published a supplemental proposed rule for public

hearing, a subsequent notice will be published in

* * * * * transmission lines; preconstruction impacts described in

added to read as follows:

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