[Federal Register: October 9, 2007 (Volume 72, Number 194)]
[Rules and Regulations]
[Page 57415-57447]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09oc07-16]
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Part III
Nuclear Regulatory Commission
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10 CFR Parts 2, 50, 51, 52, and 100
Limited Work Authorizations for Nuclear Power Plants; Final Rule
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NUCLEAR REGULATORY COMMISSION
10 CFR Parts 2, 50, 51, 52, and 100
RIN 3150-AI05
Limited Work Authorizations for Nuclear Power Plants
AGENCY: Nuclear Regulatory Commission.
ACTION: Final rule.
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SUMMARY: The Nuclear Regulatory Commission (NRC) is amending its
regulations applicable to limited work authorizations (LWAs), which
allow certain construction activities on production and utilization
facilities to commence before a construction permit or combined license
is issued. This final rule modifies the scope of activities that are
considered construction for which a construction permit, combined
license, or LWA is necessary, specifies the scope of construction
activities that may be performed under an LWA, and changes the review
and approval process for LWA requests. The NRC is adopting these
changes to enhance the efficiency of its licensing and approval process
for production and utilization facilities, including new nuclear power
reactors.
DATES: The effective date is November 8, 2007.
FOR FURTHER INFORMATION CONTACT: Nanette V. Gilles, Office of New
Reactors, U.S. Nuclear Regulatory Commission, Washington, DC 20555-
0001; telephone 301-415-1180; e-mail: NVG@nrc.gov or Geary Mizuno,
Office of the General Counsel, U.S. Nuclear Regulatory Commission,
Washington, DC 20555-0001; telephone 301-415-1639; e-mail: GSM@nrc.gov.
SUPPLEMENTARY INFORMATION:
I. Background
A. Development of the Supplemental Proposed LWA Rule
1. 10 CFR Part 52 Rulemaking
2. Industry Stakeholder Comments Seeking Changes to LWA Process
B. Publication of Supplemental Proposed LWA Rule and External
Stakeholder Interactions During the Public Comment Period
C. Description of Supplemental Proposed LWA Rule
II. Public Comments
A. Overview of Public Comments
B. NRC Response to Public Comments
1. Commission Questions
2. LWA Process
3. SSCs Within Scope of ``Construction''
4. Excavation
5. Compliance With NEPA
6. LWA Application Process
7. Other Topics
III. Discussion
A. History of the NRC's Concept of Construction and the LWA
B. NRC's Concept of Construction and the AEA
C. NRC's LWA Rule Complies With NEPA
1. NRC's Concept of Construction Is Consistent With the Legal
Effect of NEPA
2. NRC's Concept of the ``Major Federal Action'' Is Consistent
With NEPA Law
3. NRC's Phased Approval Approach Is Not Illegal Segmentation
Under NEPA
D. Consideration of Activities as ``Construction.''
1. Driving of Piles
2. Excavation
3. Temporary Structures and Activities in the Excavation
4. Construction SSCs
E. Phased Application and Approval Process
F. EIS Prepared, but Facility Construction Was Not Completed
G. Commission Action on PRM-50-82
IV. Section-by-Section Analysis
V. Availability of Documents
VI. Agreement State Compatibility
VII. Voluntary Consensus Standards
VIII. Environmental Impact--Categorical Exclusion
IX. Paperwork Reduction Act Statement
X. Regulatory Analysis
XI. Regulatory Flexibility Act Certification
XII. Backfit Analysis
XIII. Congressional Review Act
I. Background
A. Development of the Supplemental Proposed LWA Rule
1. 10 CFR Part 52 Rulemaking
This LWA rulemaking originated as a supplement to an NRC rulemaking
effort to revise 10 CFR part 52. The NRC issued 10 CFR part 52 on April
18, 1989 (54 FR 15372), to reform its licensing process for future
nuclear power plants. 10 CFR part 52 added alternative licensing
processes in 10 CFR part 52 for early site permits (ESPs), standard
design certifications, and combined licenses. These were additions to
the two-step licensing process that already existed in 10 CFR part 50.
The processes in 10 CFR part 52 allow for resolving safety and
environmental issues early in the licensing proceedings and were
intended to enhance the safety and reliability of nuclear power plants
through standardization.
The NRC had planned to update 10 CFR part 52 after using the
standard design certification process. The proposed rulemaking action
began with the issuance of SECY-98-282, ``Part 52 Rulemaking Plan,'' on
December 4, 1998. The Commission issued a staff requirements memorandum
(SRM) on January 14, 1999 (SRM on SECY-98-282), approving the NRC
staff's plan for revising 10 CFR part 52. Subsequently, the NRC
obtained considerable stakeholder comments on its planned action,
conducted three public meetings on the proposed rulemaking, and twice
posted draft rule language on the NRC's rulemaking Web site before
issuance of the initial proposed rule on July 3, 2003 (68 FR 40026).
However, a number of factors, including the experience gained in using
the 10 CFR part 52 early site permit process, led the NRC to question
whether the July 2003 proposed rule would meet the NRC's objective of
improving the effectiveness of its processes for licensing future
nuclear power plants (March 13, 2006; 71 FR 12782). As a result, the
NRC decided that a substantial rewrite and expansion of the original
proposed rulemaking was desirable so that the agency may more
effectively and efficiently implement the licensing and approval
processes for future nuclear power plants under part 52. Accordingly,
the Commission decided to revise the July 2003 proposed rule and
published the revised proposed rule for public comment on March 13,
2006 (71 FR 12782). The public comment period on the March 2006
proposed rule ended on May 30, 2006.
2. Industry Stakeholder Comments Seeking Changes to LWA Process
In a May 25, 2006 comment letter,\1\ the Nuclear Energy Institute
(NEI) suggested modifications to the NRC's LWA process including: (1)
That non-safety-related ``LWA-1'' activities, currently reflected in
Sec. Sec. 50.10(c) and 50.10(e)(1), be allowed to proceed without
prior authorization from the NRC, and (2) that the approval process for
safety-related ``LWA-2'' activities be accelerated. NEI's comment also
stated that the current definition of construction in Sec. 50.10(b)
reflects the correct interpretation of the Commission's licensing
authority under the Atomic Energy Act of 1954, as amended.
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\1\ See Letter from Adrian P. Heymer, Nuclear Energy Institute,
to Annette L. Vietti-Cook, Secretary, U.S. Nuclear Regulatory
Commission, Pre-Licensing Construction Activity and Limited Work
Authorization Issues relating to NRC Proposed Rule, ``Licenses,
Certifications and Approvals for Nuclear Power Plants,'' 71 FR 12782
(March 13, 2006) (RIN 3150-AG24) (May 25, 2006) (ADAMS ML061510471).
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NEI supported its suggested changes to the LWA process, stating
that the business environment requires that new plant applicants seek
to minimize the time interval between a decision to proceed with a
combined license application and the start of commercial operation. To
achieve this goal, NEI stated that non-safety-related ``LWA-1''
activities would need to be initiated up to 2 years before the
activities currently defined as ``construction'' in Sec. 50.10(b). NEI
believes that the current LWA
[[Page 57417]]
approval process would constrain the industry's ability to use modern
construction practices and needlessly add 18 months to estimated
construction schedules for new plants that did not reference an early
site permit with LWA authority. NEI's comment letter stated that ``[t]o
the extent the NRC determines that these LWA issues cannot be addressed
in the current rulemaking, we ask that the Commission initiate an
expedited rulemaking.''
The NRC determined that the changes suggested in the NEI letter
could not be incorporated into the final part 52 rule without re-
noticing, but that the NEI letter met the sufficiency requirements for
a petition for rulemaking as described in 10 CFR 2.802(c). Therefore,
the NRC elected to treat the letter as a petition for rulemaking (PRM-
50-82).
B. Publication of Supplemental Proposed LWA Rule and External
Stakeholder Interactions During the Public Comment Period
The supplemental proposed LWA rule was published in the Federal
Register on October 17, 2006 (71 FR 61330) for a 30-day public comment
period which ended November 16, 2006. During the public comment period,
the NRC held a public meeting on November 1, 2006, to answer external
stakeholder questions about the supplemental proposed LWA rule. A
transcript of the public meeting was made (Agencywide Documents Access
and Management System (ADAMS) Accession No. ML063190396), as referenced
in the meeting summary (ADAMS Accession No. ML062970517).
In addition, the NRC informally contacted several Federal agencies
that traditionally have been interested in environmental impacts
statements (EISs) prepared by the NRC before the issuance of LWAs and
construction permits, for the purpose of seeking their comments on the
supplemental proposed LWA rule. These Federal agencies were the Council
on Environmental Quality (CEQ), the U.S. Environmental Protection
Agency (EPA), the Federal Energy Regulatory Commission (FERC), and the
U.S. Department of the Interior, Fish, and Wildlife Service (FWS).
Finally, the Commission held a public meeting on November 9, 2006,
on the overall part 52 rulemaking, at which time industry stakeholders
presented additional information on the supplemental proposed LWA rule.
C. Description of Supplemental Proposed LWA Rule
The supplemental proposed LWA rule would narrow the scope of
activities requiring permission from the NRC in the form of an LWA by
eliminating the concept of ``commencement of construction'' currently
described in Sec. 50.10(c) and the authorization described in Sec.
50.10(e)(1). Instead, under the supplemental proposed rule, NRC
authorization would be required only before undertaking activities that
have a reasonable nexus to radiological health and safety and/or common
defense and security (i.e., excavation, subsurface preparation,
installation of the foundation, and on-site, in-place fabrication,
erection, integration or testing, for any structure, system, or
component of a facility required by the Commission's rules and
regulations to be described in the site safety analysis report or
preliminary or final safety analysis report). While the proposed
redefinition of ``construction'' would result in fewer activities
requiring NRC permission in the form of an LWA, it also would redefine
certain activities (such as the driving of piles) that are currently
excluded from the regulatory definition of construction given in Sec.
50.10(b), as construction requiring an LWA.
Further, the supplemental proposed LWA rule provided an optional,
phased application and approval procedure for construction permit and
combined license applicants to obtain LWAs. The supplemental proposed
rule provided for an environmental review and approval process for LWA
requests that would allow the NRC to grant an applicant permission to
engage in LWA activities after completion of an EIS addressing those
activities, but before completion of the comprehensive EIS addressing
the underlying request for a construction permit or combined license.
The supplemental proposed rule also delineated the environmental review
required in situations where the LWA activities are to be conducted at
sites for which the Commission has previously prepared an EIS for the
construction and operation of a nuclear power plant, and for which a
construction permit was issued, but construction of the plant was never
completed.
II. Public Comments
A. Overview of Public Comments
The NRC received 13 public comments \2\ on the supplemental
proposed rule. Ten comments were from external industry stakeholders,
consisting of NEI and 7 nuclear power plant licensees--including the 3
applicants for ESPs whose applications are currently pending before the
NRC, and 2 companies who have applied (or are expected to apply) for
standard design certifications (GE Nuclear and Areva NP). One
commenter, Dianne Curran, submitted a comment on behalf of Public
Citizen, a consumer advocacy organization, and the Nuclear Information
and Resource Service (NIRS), an information and networking organization
for organizations concerned about nuclear issues and energy
sustainability. One comment was received from the EPA, and one comment
was received from an NRC staff individual.
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\2\ A public comment dated November 7, 2006, from Westinghouse
Electric Company LLC, on the main part 52 rulemaking, was
erroneously designated as comment no. 1 on the supplemental proposed
LWA rule. This number was later assigned to a comment filed by Diane
Curran on behalf of Public Citizen and the NIRS.
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NEI supported the general approach and objective of the
supplemental proposed rule, but raised three key issues on the
supplemental proposed rule: (1) Inclusion of excavation in the
definition of ``construction;'' (2) Designation of structures, systems,
and components (SSCs) ``required to be described'' in the standard
safety analysis report or final safety analysis report (FSAR) as a key
element of the definition of ``construction;'' and (3) Limiting
submittal of LWA applications up to 12 months in advance of a combined
license application. NEI also proposed a number of changes to the
supplemental proposed rule to address three less-significant areas of
concern: (1) An LWA applicant's reliance on an earlier EIS for an
unconstructed facility; (2) LWA applicant's ability to take advantage
of the provisions of Sec. 2.101(a)(9) for an accelerated hearing
schedule when submitting an LWA application in advance of a combined
license application; and (3) The need for ``grandfathering'' of current
ESP applicants. Finally, NEI suggested that Sec. 2.101(a)(5) be
modified from the March 2006 proposed rule to allow one part of a
combined license application to precede or follow the other part of the
application by no more than 12 months. The other industry commenters,
including GE Nuclear and Areva NP, generally supported the NEI
comments, and in some cases provided additional discussion in support
of one or more of NEI's specific comments.
Public Citizen and NIRS opposed granting of an LWA in advance of
issuance of a construction permit or combined license, in general
because
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these commenters perceived the process as introducing additional
complexity to the licensing process, and increasing the cost to
individuals who wish to participate in the licensing process. These
organizations supported the NRC's proposal to include excavation and
the driving of piles in the definition of construction.
The EPA indicated that it had no objections to the supplemental
proposed LWA rule, stating that the supplemental rule would ``enhance
the efficiency of the NRC's LWA approval process, while maintaining
appropriate consideration of environmental effects pursuant to NEPA
[National Environmental Policy Act of 1969, as amended].'' In addition,
NRC was advised by telephone that CEQ had no objection to the
supplemental proposed LWA rule, and therefore would not submit a
written comment on the rule.
The NRC staff individual provided eight numbered comments on the
supplemental proposed LWA rule. The commenter focused on compliance
with the NEPA and the potential adverse effect of the supplemental
proposed rule on the NRC staff's resources.
B. NRC Response to Public Comments
The NRC has carefully considered the stakeholder comments, and is
adopting a final LWA rule which differs in some respects from the
supplemental proposed LWA rule. The final rule is described and
discussed in more detail in Sections III. Discussion, and IV. Section-
by-Section Analysis of this document.
The NRC is adopting the LWA rule as a separate final rule, rather
than incorporating its provisions into the final part 52 rule.
Incorporating the provisions of the final LWA rule into the final part
52 rulemaking would have resulted in a delay in publication of the
final part 52 rule, because of the additional time needed for NRC
consideration and resolution of the substantial issues raised in the
public comments on the supplemental proposed LWA rule. Accordingly, the
NRC has adopted the final part 52 rulemaking in a separate action, in
advance of this final LWA rule.
1. Commission Questions
In the statement of considerations (SOC) for the supplementary
proposed LWA rule, the Commission posed three questions, as follows
(October 17, 2006; 71 FR 61340, second column):
As explained above, this supplemental proposed rule would impact
the types of activities that could be undertaken without prior
approval from the NRC, with NRC approval in the form of an LWA, and
with NRC approval in the form of a construction permit or combined
license. Therefore, in addition to the general invitation to submit
comments on the proposed rule, the NRC also requests comments on the
following questions:
1. What types of activities should be permitted without prior
NRC approval?
2. What types of activities should be permitted under an LWA?
3. What types of activities should only be permitted after
issuance of a construction permit or combined license?
Only one commenter provided separate responses to these three
Commission questions; but the responses were simply an abbreviated
version of the comments. The remaining commenters addressed the issues
raised in these questions in the course of the commenters' discussion
on the supplementary proposed LWA rule. Accordingly, the NRC is not
providing a separate discussion of these questions and commenters'
responses. Instead, the NRC is responding to these issues in the NRC's
responses to specific comments.
2. LWA Process
Comment: The Commission should adopt the LWA final rule as a
necessary improvement to the existing LWA process. (NEI, Dominion
Nuclear North Anna, Duke Energy, Florida Power and Light, Progress
Energy, Southern Company, Unistar, Areva, and GE Nuclear)
NRC Response: The NRC agrees with the commenters that the former
NRC provisions on LWAs should be amended to improve the LWA process.
Comment: The Commission should not adopt regulations that allow
approval of LWA activities in advance of the issuance of a construction
permit or combined license. Allowing LWA activities before a plant is
licensed would confirm to the public that the licensing process is a
sham. The LWA process represents a further segmentation of the
licensing process, which will add complexity to the licensing process,
and result in further disenfranchisement of the public. (Public
Citizen/NIRS 1)
NRC Response: The NRC disagrees with these commenters. The
commenters' position fails to recognize that the LWA process has been
used by the agency for over 30 years, and therefore the proposed
changes to the LWA process would not add to complexity, or otherwise
represent further segmentation. The agency's rules include several
longstanding requirements directed at avoiding NEPA segmentation. These
requirements are retained in their essential form in the final LWA
rulemaking.
The NRC does not believe that the final LWA rule adds any further
complexity to the licensing process, or otherwise results in further
``disenfranchisement'' of the public. As stated above, the NRC's
regulatory regime already includes the LWA process, and the rule does
not modify or change the public's ability to participate in the
licensing process. Indeed, rather than ``disenfranchising'' the public,
the LWA rule may have the effect of enhancing the ability of external
stakeholders to participate in a hearing to resolve their issues with
respect to a particular nuclear power plant. Because of resource
limitations, many public stakeholders have expressed their concern
that, because of the broad range of issues addressed by the NRC at each
stage of licensing, it is difficult for them to seek resolution in an
NRC hearing for the full range of issues that they are interested in.
For these stakeholders, the LWA process--by separating out a defined
set of issues to be resolved in advance of the underlying combined
license or construction permit proceeding--allows public stakeholders
to focus their resources on the relevant issues in an LWA hearing. The
``complexity'' of the process provides an orderly sequencing of the
overall set of issues that must be resolved, without introducing
unlawful segmentation. The NRC believes that if these public
stakeholders consider the revised process in this light, they should
conclude that the LWA process enhances, rather than detracts from,
participation in the licensing process by interested members of the
public who are resource-limited.
The NRC does not believe that the NRC's proposed redefinition of
``construction'' constitutes unlawful ``segmentation'' which results in
non-compliance with NEPA. Segmentation, as discussed elsewhere in this
SOC, embraces the situation where a Federal agency divides what would
otherwise be regarded as a single, integrated Federal action into
separate, smaller Federal actions, for the purpose of avoiding
compliance with NEPA, or otherwise minimizing the apparent impact of
the single, integrated Federal action. The NRC's redefinition of
construction is not motivated by a desire to avoid compliance with
NEPA, nor will it result in a single Federal action being divided into
smaller, sequential Federal actions. Rather, the NRC's redefinition
reflects its reconsideration of the proper regulatory jurisdiction of
the agency, and properly divides what was considered a single Federal
action into private action for
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which the NRC has no statutory basis for regulation, and the Federal
action (licensing of construction activities with a reasonable nexus to
radiological health and safety or common defense and security, for
which no other regulatory approach is acceptable) which will require
compliance with NEPA.
3. SSCs Within Scope of ``Construction''
Comment: The scope of SSCs that must be described in the FSAR is
not always clear, even under the words of existing NRC regulations
(e.g., 10 CFR 50.34(b)(2)(i)), which requires discussion of certain
systems ``insofar as they are pertinent.'' (Areva 1, 2)
NRC Response: The NRC agrees, in part, with these comments and has
revised the scope of SSCs that fall within the definition of
construction to clearly identify the SSCs that have a reasonable nexus
to radiological health and safety, or the common defense and security.
Comment: The NRC's description of activities constituting
``construction,'' which require a combined license or construction
permit (October 17, 2006; 71 FR 61337), should be modified to refer to
the ``installation or integration of that structure, system, or
component into its final plant location and elevation * * *.''
(Progress Energy 4)
NRC Response: The NRC agrees in part with the commenter, and the
corresponding language of this SOC has been modified to state ``into
its final plant location would require * * *.''
4. Excavation
Comment: It is not necessary to define construction as including
excavation of portions of the nuclear power plant facility having a
``reasonable nexus to radiological health and safety.'' Problems
identified during excavation should be identified as part of the site
characterization and investigation required for preparing a combined
license or construction permit. NRC Regulatory Guide (RG) 1.165,
``Identification and Characterization of Seismic Sources and
Determination of Safe-Shutdown Earthquake Ground Motion,'' was updated
in 1997 to provide that combined license (COL) applicants' FSARs should
include a commitment to geologically map all excavations and notify the
NRC when excavations are open for inspection. For safety-related SSCs,
these excavations and characterization/investigation activities would
be conducted under the applicant's quality assurance (QA) program. This
could result in relocation of such SSCs. This provides a better process
for ensuring safety and would better support an effective licensing
process. In addition, NRC will be involved in pre-application
activities and may elect to conduct oversight of any activity involving
site characterization and site preparation. The examples cited by the
NRC in the public meeting as a basis for including excavation within
the definition of ``construction'' did not involve questions about the
safety of the excavation activities themselves, but rather the
conditions that were identified as the result of excavation. In these
cases, the commitments to geologic mapping and notification of the NRC
are sufficient to meet the NRC's regulatory interests. Accordingly,
Sec. Sec. 50.10(b) and 51.4 should be revised in the final rule to
exclude excavation from the definition of construction, provided that
the entity conducting excavation geologically maps the excavations and
the NRC staff is notified when the excavations are opened for
inspection. (NEI 1; GE Nuclear; Progress Energy 1)
NRC Response: The NRC agrees, in part, with this comment and has
deleted excavation from the definition of construction in 10 CFR
50.10(a). A construction permit or combined license applicant is
responsible, under the current regulations, to demonstrate that the
site conditions are acceptable for the proposed facility design. This
responsibility exists regardless of whether or not the NRC reviews and
approves the proposed excavation activities and inspects the excavation
activities as they are accomplished. Inasmuch as NRC inspection and
regulatory oversight of the excavation are not necessary for reasonable
assurance of adequate protection to public health and safety or common
defense and security, and because the applicant bears the burden for
accurately characterizing the parent material, the NRC concludes that
excavation may be excluded from the definition of construction.
Comment: Excavation and the driving of piles should be considered
``construction.'' Prior agency experience has shown that safety issues
have been identified during excavation, citing to the experience of
North Anna nuclear power plant, as well as a nuclear power plant in the
Midwest where soil conditions identified during excavation necessitated
a change in foundation design. Neither the public nor a reviewing court
would think that the NRC would be able to make the underlying licensing
decision (i.e., granting a construction permit or a combined license)
in an unbiased fashion if excavation proceeded in advance of the
underlying licensing decision. (Public Citizen/NIRS 2)
NRC Response: The NRC disagrees, in part, with this comment. As
discussed in the response immediately above, the NRC concludes that
excavation may be excluded from the definition of construction.
However, the driving of piles and any other foundation work is defined
as construction.
Comment: The SOC for the final rule should specify that excavation
includes appropriate erosion control measures necessary to stabilize
site excavations pending LWA or license (i.e., combined license or
construction permit) approval of construction activities. (NEI 1.5)
NRC Response: The NRC agrees, in part, with this comment. The NRC's
definition of construction in the final LWA rule includes: (1) Any
change made to the parent material in which the excavation occurs
(e.g., soil compaction, rock grouting); and (2) The placement of
permanent SSCs that are put into the excavation during or after the
excavation (e.g., installation of permanent drainage systems, or
placement of mudmats). If the erosion control measures are conducted
outside of the excavated hole and do not cover up the exposed soil
conditions, then those activities would be allowed under Sec.
50.10(a). However, under the final LWA rule, the placement of temporary
SSCs in the excavation, such as retaining walls, drainage systems, and
erosion control barriers, all of which are to be removed before fuel
load, would not be considered construction.
Comment: ``Construction'' should be limited to above-ground
installation of certain SSCs. (Areva 1)
NRC Response: The NRC disagrees. Even under the former provisions
of Sec. 50.10(e)(3), construction included the setting of foundations
and other work accomplished below grade. The commenter provided no
basis for limiting the definition of construction to the above-grade
installation of SSCs of interest. No change was made in the final rule
as the result of this comment.
Comment: Temporary buildings, structures, and roads, may be located
in the eventual location of SSCs for which an LWA is required for
excavation under the supplemental proposed LWA rule. If excavation is
required for the temporary buildings, structures, and roads, the
supplemental proposed rule would appear to prohibit such excavation.
The final rule should make clear that excavation for SSCs outside the
scope of an LWA, such as temporary buildings, structures, and roads,
should be excluded from the definition of construction. (Areva 3)
[[Page 57420]]
NRC Response: As discussed previously, the NRC has decided to
exclude all excavation from the definition of construction. In
addition, the NRC notes that under the final LWA rule, SSCs that are
not within the scope of construction may be installed before receipt of
an LWA, construction permit, or combined license. Accordingly, the
final rule resolves the commenter's issue.
5. Compliance With NEPA
Comment: The impacts of the construction activities that the NRC
proposes to exclude from its regulations have been part of the NRC
regulations since 1972. What has changed causing the NRC to decided
that these activities will not longer be part of the environmental
review? Has NRC been doing it wrong for more than 30 years (including
the 3 early site permits that are either completed or near completion)?
(Kugler 1)
NRC Response: As discussed in the ``Discussion'' section of this
final rule (as well as the supplemental proposed rule), the 1972
amendment to the definition of construction in 10 CFR 50.10 was made
early in the Federal government's implementation of then-new NEPA.
Since that time, the Federal case law on NEPA has evolved, with several
U.S. Supreme Court decisions on the requirements of NEPA. In addition,
in preparing for the expected next generation of nuclear power plant
construction applications, the nuclear power industry has reviewed the
overall construction process based upon lessons learned from the
construction and licensing process used for currently operating
reactors. The industry submitted what is essentially a petition for
rulemaking seeking changes to the LWA process, reflecting those lessons
learned and their understanding of the current state of NEPA law. The
NRC has reviewed the applicable law, and for the reasons stated
elsewhere in this SOC, agrees with the petitioner that the current
definition of construction and the current LWA requirements in Sec.
50.10 are not compelled by NEPA or the Atomic Energy Act (AEA) of 1954,
as amended. While the agency's regulations on construction and LWAs
were a reasonable implementation of NEPA as understood in 1972, the NRC
believes that, with more than 30 years experience in implementing NEPA
and the evolving jurisprudence, the time is appropriate for
reconsideration and revamping of these NRC requirements.
Comment: The impacts of the construction of a nuclear power plant
that NRC now proposes to exclude from NRC regulations are probably 90
percent of the true environmental impacts of construction. Before even
talking to the NRC, a power company can clear and grade the land, build
roads and railroad spurs, erect permanent and temporary buildings,
build numerous plant structures (e.g., cooling water intake and
discharge, cooling towers), and build switchyards and transmission
lines. After potentially doing all of that, THEN the company would come
to the NRC and ask permission to build the power plant for which all of
this work was done. How does this comply with NEPA? The commenter
asserts that the NRC is going to ignore almost all of the construction
impacts of the proposed action. (Kugler 2)
NRC Response: The commenter assumes that, if a private action is
preparatory to Federal action, then NEPA provides a statutory basis for
the agency to extend its otherwise limited jurisdiction under the AEA
to those private, preparatory actions, solely for the purpose of agency
consideration of the environmental impacts under NEPA. The commenter
has not pointed to, and the NRC has not identified, Federal case law
that supports such a position. Indeed, even in a case where the Federal
agency had unequivocal statutory authority to grant or deny a Federal
permit, the U.S. Supreme Court specifically held that the Federal
agency was not compelled to require mitigation based upon environmental
considerations identified in the NEPA review. Robertson v. Methow
Valley Citizens Council, 490 U.S. 332 (1989).
The commenter also asserts that the NRC is going to ``ignore all
the [pre-]construction impacts of the proposed action.'' On the
contrary, as stated elsewhere in this SOC, the pre-construction private
actions of clearing, grading, access road construction, etc., will be
considered in the cumulative impacts analysis in the LWA EIS as the
baseline for analyzing the environmental impacts associated with the
Federal action authorizing LWA activities. This information will be
used when evaluating the environmental impacts of construction and
operation of the proposed nuclear power plant.
Comment: The commenter states that the final rule says NRC won't
consider the sunk costs of all of this work in your decision whether to
approve the request to build the plant. The commenter asserts that NRC
has allowed the company to do most of the environmental damage. Who
cleans up the mess if the NRC says no? The commenter states that
because the NRC has excluded from its review all of this work that's
specifically for the purpose of building the plant, the NRC also can't
require any redress plan for the site for those impacts. (Kugler 2.a)
NRC Response: The commenter appears to believe that the NRC has
authority to exercise its regulatory jurisdiction in an area where it
does not otherwise possess regulatory authority under its organic
statute, solely for the purpose of ensuring environmental redress of
private activities with significant environmental impacts. The NRC does
not agree with the commenter's implicit suggestion. As discussed in the
response to the previous comment as well as elsewhere in this SOC, the
NRC does not possess statutory authority to regulate activities that do
not have an impact upon radiological health and safety or common
defense and security, and NEPA does not provide independent statutory
authority to extend the agency's jurisdiction solely for the purpose of
assuring that adverse environmental impacts are considered and
mitigated. While this may be a worthy goal, the NRC may not lawfully
act in such a manner, absent additional statutory authority which is
not currently provided by either NEPA or the AEA.
Comment: The commenter asserts that NRC won't consider the sunk
costs in its review. The commenter also asserts that it sounds like the
``baseline'' for the environmental review will include the
environmental damage done by a company in terms of ``pre-application''
activities. In other words, if an applicant for an LWA, CP, or COL has
done all of the things NRC now allows without NRC review, the condition
of the cleared and partially built site is now the starting point for
the environmental review. The commenter states that in terms of
comparing this partially built site to any alternative site, NRC has
essentially ``pre-selected'' the site chosen by the applicant. The
commenter states there will be less environmental impacts at a site
that has already had most of the damage done to it as compared to any
other site. The commenter believes the NRC has handed its
responsibility for the site suitability determination over to the
applicant. (Kugler 2.b)
NRC Response: The commenter makes two incorrect assumptions. First,
the commenter implicitly assumes that environmental matters are the key
determinants of site suitability. The NRC believes that, as a practical
matter and as borne out by the history of site suitability
determinations in the past, other factors, such as seismic activity and
intensity, geological structures, meteorological factors, impediments
to development of emergency plans,
[[Page 57421]]
security issues, and demographics (population density and distance)
from a safety perspective are at least as important, if not more
important, than ``environmental'' matters as a key determinant of site
suitability.
Second, the commenter assumes that clearing of a site will always
tilt the environmental balance in favor of the applicant's ``pre-
selected site.'' This may not be true in most cases. For example, even
an ``obviously superior'' site from the standpoint of environmental
impacts on water--which is likely to be the determining
``environmental'' impact--will require grading and clearing in order to
be used. If construction were to be abandoned at the applicant's ``pre-
selected site'' and commenced at the ``obviously superior site,'' the
environmental impacts of pre-construction activities such as clearing
and grading would still have to be performed at the ``obviously
superior'' site. In essence, the ``sunk environmental impacts''
associated with preconstruction at the pre-selected site are balanced
out by the ``future'' environmental impacts associated with
preconstruction at the ``obviously superior'' site. Thus, pre-
construction at a ``pre-selected'' site could not, in and of itself,
lead to automatic dismissal of otherwise ``obviously superior'' sites.
In any event, the issue of the ``baseline'' for purposes of
alternative sites is not addressed directly in the final LWA rule and
will be resolved in the development of NRC guidance on implementation
of the final LWA rule. Furthermore, the NRC notes that pre-construction
impacts will be evaluated as part of the cumulative impacts analysis,
which may render moot some aspects of the commenter's concerns in this
area.
Comment: How can NRC tell the world in an EIS that the only real
impacts of construction of a nuclear power plant will be related to
digging a big hole and a few other straggling items that will occur
while the structures described in the FSAR are being built? (Kugler
2.c)
NRC Response: The commenter appears to assert that the NRC's EIS
for a combined license must attribute to the NRC's Federal action all
of the environmental impacts of constructing a nuclear power facility,
including the private, pre-construction activities that may be
accomplished by the applicant without any NRC approval. The commenter's
implicit assertion is incorrect. The NRC's EIS need only describe the
environmental impacts of the Federal action as those construction
activities, as defined under Sec. 50.10, which can only be
accomplished under an LWA and combined license or construction permit.
The environmental impacts of pre-construction activities will also
be described in the NRC's EIS because such description is necessary to
evaluate the cumulative impacts of the Federal action, in light of the
pre-existing impacts of the private, pre-construction action. The
cumulative impacts discussion should provide information on the total
environmental impacts of constructing the nuclear power plant to both
the NRC decisionmaker and the general public.
The NRC notes that, under the final LWA rule, excavation for SSCs
that are important from a radiological health and safety or common
defense and security standpoint will not be treated as
``construction.'' Therefore, the environmental effects of excavation
would not be evaluated as an impact attributable to the Federal
licensing action, but instead be added to the environmental baseline
for a site.
Comment: How are applicants and NRC going to divide impacts if some
of the construction activities now out side (sic.) the NRC's scope are
going on at the same time as activities inside NRC's scope? For
example, traffic impacts of the construction workforce are often an
issue. But how does the NRC deal with it if part of the workforce is
building cooling towers and intake systems, and part is building FSAR-
listed structures? Another case is property taxes. The property taxes
paid by the company are a significant item in the socioeconomic review.
Are the applicant and the NRC now going to have to differentiate
between taxes paid for FSAR-related facilities and taxes paid for other
facilities? (Kugler 2.d)
NRC Response: The commenter raises a number of detailed issues with
respect to NRC implementation of the final rule in the course of
preparing EISs. None of these matters appear to raise issues that are
insurmountable or would be unusually difficult to resolve. For example,
the need to apportion the taxes for FSAR-related SSCs, versus taxes on
other portions of the facility whose construction does not require NRC
approval could be resolved by simply treating all the taxes paid as a
benefit of operation, and the impacts from all portions of the plant as
an impact of operation. The NRC expects that the staff will develop
supplemental guidance to the environmental standard review plan on
these and other implementation matters.
Comment: The commenter states that the rule says that if an LWA is
issued, the EIS to build and operate a nuclear power plant will be a
supplement to the EIS for the LWA. The commenter believes this means
that the EIS that evaluates the impacts of building and operating a
large commercial power plant will be a supplement to the EIS for
digging a big hole. The commenter states that assuming the EIS for the
big hole ignores all of the other impacts of construction that may
already have taken place, it's going to be pretty limited in scope. The
commenter states that this EIS of very limited scope will now become
the base document, and the EIS that considers ALL of the impacts of
operations will be a supplement to it. (Kugler 3)
NRC Response: The NRC believes that the proposed rule is consistent
with NEPA. The commenter presented no rationale why the NRC's proposal
violates either NEPA or CEQ's implementing regulations. NEPA itself
only requires that a statement be prepared addressing the environmental
impacts and alternatives of major Federal actions significantly
affecting the environment. The statute does not contain any language
specifically constraining the manner in which each EIS for two
sequential Federal actions must be prepared. Hence, the NRC is free to
select a manner of NEPA compliance which best meets the agency's needs.
The commenter appears to be concerned that, if the LWA applicant
chooses to submit an environmental report limited to LWA activities,
then the LWA EIS would be a relatively narrow document which cannot be
the basis for a supplemental EIS with a greatly expanded scope of
subject matters addressed. The NRC does not believe that the
commenter's concern is well-founded. First, the CEQ's regulations
specifically permit ``tiering'' of EISs to ``eliminate repetitive
discussions of the same issues and to focus on the actual issue ripe
for consideration at each level of the environmental review * * *'' (40
CFR 1502.20). Although most of the tiering discussion refers to a broad
initial EIS followed by more specific EIS tiering on the earlier EIS,
40 CFR 1502.20 also states, ``Tiering may also be appropriate for
different stages of actions (emphasis added).'' The NRC believes that
the LWA is a stage in the overall Federal action of issuing a license
for construction (and, in the case of a combined license under part 52,
operation) of a nuclear power plant. It is logical to evaluate the
environmental impacts of the activities that occur first (i.e., LWA
activities), followed by evaluation of the impacts of activities that
occur thereafter (i.e., main construction and operation). The
[[Page 57422]]
potential for segmentation of the Federal impacts is minimized, as
discussed previously, by various provisions of the rule which, inter
alia, prohibit NRC consideration of sunk costs, require consideration
of all environmental impacts and benefits attributable to LWA
activities in the supplemental EIS prepared for the underlying combined
license or construction permit application, and require the applicant/
licensee to develop and, if necessary, implement a redress plan.
Second, the CEQ regulations also encourage agencies to incorporate by
reference material into an EIS to cut down on bulk without impeding
agency and public review of the action. Nothing in the CEQ regulations
suggests that incorporation by reference is precluded where the
material being incorporated is smaller in bulk than the EIS into which
the material is being incorporated. The NRC believes the purpose of
incorporation by reference is served by incorporating the LWA EIS into
the supplemental EIS prepared at the combined license or construction
permit stage.
Comment: The commenter states the LWA EIS will only be looking at
the impacts of digging the big hole and pouring the foundation. At what
point does the NRC staff evaluate the impacts of construction and
operation to determine whether the site is SUITABLE for the
construction and operation of a nuclear power plant? Is that done
later? Does that mean that NRC could authorize digging the hole at a
site that could later be determined by NRC to be unsuitable? (Kugler 4)
NRC Response: The NRC has decided that excavation should not be
considered ``construction,'' and that NRC permission is not required to
undertake excavation activities. Accordingly, a response to this
comment, to the extent that it is focused on NRC consideration of the
impacts of excavation as an impact of the issuance of the LWA,
construction permit, or combined license, is unnecessary. As discussed
elsewhere in this document, the impacts of preconstruction activities
performed by the ESP holder, construction permit, or combined license
applicant must be described by the applicant in its environmental
report, and must be considered in the cumulative impacts analysis.
Under the final LWA rule, the NRC's evaluation of site suitability
must be made when it issues a construction permit or combined license,
unless the applicant seeks, either as part of an LWA or in advance of
the issuance of the construction permit or combined license under
subpart F of part 2, an early decision on site suitability and/or the
environmental impacts of construction and operation.
Comment: Has the NRC discussed these changes with key stakeholders
like EPA, CEQ, and FERC? What do they think of this change? The
commenter states that this is a major shift by the NRC away from its
NEPA responsibilities, and believes that other agencies may have real
problems with it beyond the basic NEPA issues. For example, will FERC
commence a review for transmission lines if the power company hasn't
submitted an application to the NRC to build the plant for which it's
needed? Similarly, will the Corps of Engineers issue Section 404
permits to damage wetlands and dredge if there's no request to build a
plant yet? Has anybody talked to them? (Kugler 5)
NRC Response: The NRC sought comments on the proposed rule from
four Federal agencies who have historically been interested in NRC
construction licensing from an environmental standpoint. Advance copies
of the proposed rule as approved by the Commission were provided to the
CEQ, the EPA, FERC, and the U.S. Department of the Interior, FWS, and
copies of the proposed rule as published in the Federal Register were
electronically transmitted to cognizant individuals in these agencies
on the date of publication of the proposed rule in the Federal Register
(ADAMS Accession Nos. ML062840445, ML062910051, and ML062910049).
Additional telephone calls were made to describe the proposed rule and
to answer any questions from these agency officials. As discussed
earlier in this document, the NRC has received comments from the EPA,
which has no objection to the change. NRC was advised by telephone that
CEQ had no objection to the supplemental proposed LWA rule. The NRC has
been advised by FERC that it ordinarily would not review transmission
line routings for lines commencing at nuclear power facilities. The NRC
believes that it has made reasonable efforts to obtain input from other
cognizant Federal agencies, and none appear to share the concerns of
the commenter. No change from the supplemental proposed LWA rule has
been made as the result of this comment.
Comment: How does this change affect the current early site permit
applicants? The commenter states that, for example, Exelon and Dominion
submitted redress plans for all of the impacts of construction they'd
be allowed to carry out before receiving a license to build and operate
a plant. The petitioner also believes Southern submitted redress plans.
Future applicants won't have to do this. What happens to the Exelon and
Dominion redress plans? Do they get out of them now? If so, how does
NRC explain that to all of the folks involved in those reviews who
relied on the NRC's representations that a redress plan was required
(e.g., the public, Federal and State environmental regulatory
agencies)? What happens to Southern, which is early in its review?
(Kugler 6)
NRC Response: The final rule does not affect the NRC staff's
approval of a full-scope redress plan to support LWA activities under
the former LWA provisions in Sec. Sec. 50.10 and 52.17. The three
applicants for ESP which are currently before the NRC are required to
meet the NRC's requirements in effect at the time of the application,
with respect to the content of the application. If the final rule is
adopted before ESPs are issued to the current ESP applicants, then the
applicant may (but is not required to seek to revise its redress plan
and seek NRC approval of a (narrowed) redress plan that meets the
requirements of the final LWA rule. In such a case, the NRC would
advise other Federal and State agencies of the change in NRC's
regulatory requirements and any change in the scope of the approved
redress plan which may be requested by the ESP applicant.
Alternatively, upon issuance of the ESP, the ESP holder may request an
amendment to its ESP, consistent with the recently-adopted revisions to
10 CFR part 52, to seek NRC approval of a (narrowed) redress plan which
is consistent with the requirements of the final LWA rule. In such an
event, the NRC would--as part of its routine procedures--consult with
relevant Federal agencies. No change from the supplemental proposed LWA
rule was made as a result of this comment.
Comment: Section 51.49(a)(2) should be revised to delete the
requirement for an LWA applicant to state the need for an LWA.
(Progress Energy 5)
NRC Response: The NRC disagrees with the commenter's proposal. An
EIS should state the purpose and need for a proposed action. 10 CFR
part 51, appendix A, paragraph 4; 40 CFR 1502.13. Inasmuch as the NRC
is acting on a private entity's request in a licensing action, the
purpose and need should be, in the first instance, determined by the
applicant and be adopted by the NRC. No change was made to the final
rule as a result of this comment.
Comment: Sections 51.20(b)(1) and (5), and 51.76(b) and (e) should
be revised to allow the NRC staff the option of preparing and issuing
an
[[Page 57423]]
environmental assessment (EA) if the environmental report shows no
significant environmental impacts associated with LWA activities.
(Progress Energy 6, 7, 8)
NRC Response: The NRC disagrees with the commenter's proposal. In
preparing the supplementary proposed rule, the NRC considered the
approach recommended by the commenter. However, the NRC rejected
proposing such an approach because it would increase the perception of
Federal segmentation, without any significant countervailing benefits,
in terms of resources or time necessary to complete the NEPA process.
Furthermore, the tiering concept, under CEQ regulations, involves
sequential EISs rather than an EA followed by an EIS. The NRC believes
that it would not be prudent to pursue a new approach to NEPA
compliance, which may result in legal instability in an area of
critical interest to industry stakeholders. The commenter presented no
information in favor of its proposal. Accordingly, in the absence of
new information suggesting that the Commission's initial determination
should be revisited, the Commission declines to adopt the commenter's
proposal. No change was made to the final rule as a result of this
comment.
6. LWA Application Process
Comment: The commenter states that the NRC expects over 15
applications for COLs in the next 3 years or so. Perhaps it can staff
up to meet the challenge of preparing those 15 EISs. But can it
possibly handle 30? If most or all of the COL applicants choose to
submit an LWA application too, which would seem likely, the NRC staff
will have to prepare two EISs for each site. Has the NRC considered the
resource implications? (And if an applicant chooses to go the ESP route
for some reason, there will be three EISs.) (Kugler 7)
NRC Response: The commenter appears to believe that, under a
revised LWA rule, the overall resources expended by the NRC in
preparing EISs would increase over the current regulatory regime in a
time frame that would exacerbate any problems that may be caused by
limited NRC staff resources. The NRC disagrees with the commenter. The
final LWA rule merely governs the timing of the NRC's environmental
review of the overall action of licensing the construction and
operation of a nuclear power plant, consistent with NEPA.
Taking the specific example identified by the commenter of a
combined license applicant, who both seeks an LWA and references an
ESP, it is possible--as the commenter correctly points out--that three
EISs may be prepared in the worst case of a less than complete ESP EIS.
However, the final LWA rule does not require the NRC staff to prepare
entirely new, full-scope EISs at either the LWA or the combined license
issuance stages. Instead, the EIS at the LWA stage would be limited to
considering the environmental impacts of LWA activities only (assuming
that the LWA ER is limited to providing information on the
environmental impacts of LWA activities). This is consistent with NRC
and CEQ regulations that allow incorporation by reference. Preparation
of an LWA EIS limited to those subjects would not be redundant of the
ESP EIS, inasmuch as the impacts of construction under this scenario
were not addressed in the ESP EIS. Accordingly, there is no unnecessary
expenditure of NRC resources attributable to anything in the LWA rule.
When the combined license supplemental EIS is prepared, that EIS will
be limited to considering new and significant information related to
matters concerning construction and operation of the facility which was
not addressed in the ESP EIS, unless the matter was discussed in the
LWA EIS. In that limited case, the nature and description of the LWA
construction impacts are deemed to be resolved, and these impacts would
be considered in the overall balancing and decisionmaking on issuance
of a combined license without the need to re-examine the nature and
description of those LWA impacts. Again, the final LWA rule avoids
redundant NRC review to the maximum extent practicable, inasmuch as the
combined license EIS relies upon the determinations regarding the
nature and impacts of construction and operation which were made at
both the ESP and LWA stages. The overall scope of the NRC environmental
review is not changed; it is merely the timing of the review for
individual issues that is affected by the final LWA rule.
In sum, the NRC does not agree with the commenter that the LWA rule
will, as the consequence of its provisions, result in an adverse impact
upon the amount and timing of expenditure of NRC resources that cannot
be managed in an effective manner. No change from the supplemental
proposed LWA rule was made in response to this comment.
Comment: One commenter states that it appears that this new process
will require major changes to NRC guidance documents such as RGs and
the environmental standard review plan. Almost everything related to
the impacts of construction will have to be completely rewritten. Can
this be done before the first applicant uses the new rule? (Kugler 8)
NRC Response: The NRC agrees with the commenter that changes to the
NRC RGs and the environmental standard review plan will be necessary to
provide complete guidance to potential applicants and the NRC review
staff with respect to implementation of the new LWA process in the
final LWA rule. However, the NRC does not agree with the commenter's
implicit assertion that the guidance must be finalized before the first
applicant (or several applicants) can use the new LWA process in an
effective manner. The NRC has, in many other instances, adopted rules
containing substantial changes to its technical and regulatory
requirements applicable to nuclear power reactors. Although the NRC
does not wish to understate the challenge of implementing new rules, it
is confident that the NRC working level technical staff, under careful
and timely oversight by NRC staff management, will be able to implement
the final LWA rule in a timely, consistent, and effective manner.
Comment: One commenter states that the supplemental proposed rule
does not appear to allow an applicant to use both a phased LWA process
and the hearing process for early partial decision on site suitability
issues, thereby allowing an applicant who wishes to apply for an LWA to
also submit the environmental information under Sec. 2.101(a)(5) and
proceed with an accelerated hearing on the full scope of environmental
matters. The Commission should adopt changes in Sec. Sec. 50.10(c)(2)
and 2.101(a)(5) to allow an applicant to use both processes
simultaneously. (NEI 5; Unistar 1)
NRC Response: The NRC believes that the commenter misunderstood the
provisions of the supplemental proposed rule. The NRC's intent is that:
Applicants may submit a two-part (phased) application for
an LWA in advance of the application for the underlying combined
license or construction permit, see Sec. 2.101(a)(9).
The environmental information submitted in the LWA portion
of the application may either be limited to the LWA activities
requested, or the full scope of construction and operation impacts, see
Sec. 51.49(b) and (f).
An LWA applicant may seek an early decision on siting and
environmental matters. If the LWA is submitted in advance of the
underlying construction permit or combined license application, the
procedures in 10 CFR part 2, subpart F, Sec. Sec. 2.641 through 2.649
apply. If the LWA is submitted as part of (or after) the construction
permit or
[[Page 57424]]
combined license application, then the procedures in subpart F,
Sec. Sec. 2.601 through 2.629 would apply because this is the ordinary
procedure for obtaining an early decision on siting and environmental
matters under the existing provisions of subpart F.
The NRC does not believe the specific language changes to the
proposed rule described by the commenter are necessary to accomplish
these three objectives. Accordingly, the Commission declines to adopt
the changes proposed by the commenter, and no change from the
supplemental proposed LWA rule was made in response to this comment.
Comment: One commenter proposed that the timing provisions in 10
CFR 2.101(a)(5), requiring that each part of a two-part combined
license application be submitted within 6 months of each other, should
be revised to be consistent with 10 CFR 2.101(a)(9) of the supplemental
proposed rule, which permits the LWA application to be submitted up to
12 months in advance of the underlying combined license or construction
permit. The commenter believes that additional conforming changes
should be made to implement this concept, including changes in Sec.
50.10(c)(2). (Unistar 2) Another commenter made the same proposal, but
separately suggested that the overall time between parts of
applications be lengthened to 18 months. (NEI 6)
NRC Response: The NRC agrees with the commenters that the timing
provisions should be consistent. Furthermore, the NRC agrees with the
second commenter (NEI) that the overall time between parts of
applications may be lengthened to 18 months. The 6 month limitation in
former Sec. 2.101(a)(5) for two-part applications was set many years
ago and reflected internal NRC administrative considerations, including
maximizing efficiency and ensuring continuity of review oversight. The
12-month limitation between submission of the LWA application and the
underlying combined license or construction permit application, as
proposed in the supplemental proposed LWA rule, was based upon the same
considerations, as well as environmental/NEPA considerations. The NRC
did not want the time between the initial submission of LWA
environmental information and the subsequent consideration of the
overall environmental impacts to be lengthened to the point that there
would be a substantial likelihood of new and significant information
that would require updating. A 12-month limitation was established as a
reasonable limitation. No consideration was given to having a
consistent limitation in both existing paragraph (a)(5) and proposed
paragraph (a)(9).
However, after further consideration based upon public comments,
the NRC concludes that the 6-month limitation in paragraph (a)(5) and
the proposed 12-month limitation in paragraph (a)(9) are unduly
restrictive. The NRC believes that administrative efficiency can be
maintained with longer time periods between parts of applications, in
view of modern information technology, NRC's restructuring of the
licensing process in part 52, the NRC's recent adoption of changes to
part 2, subpart D and part 52, appendix N, and the NRC's projected use
of design-centered reviews. In addition, the NRC understands, in
response to informal inquiries with EPA, that 18 months is well within
the time period considered by EPA to be acceptable for referencing a
previously-prepared EIS without updating. For these reasons, the
Commission is adopting an 18-month limitation in paragraphs (a)(5) and
(a)(9) of Sec. 2.101.
7. Other Topics
Comment: The NRC should include a ``grandfathering'' provision in
the final rule to make clear that the final rule does not require any
change to ESP applications filed before the effective date of the rule,
such as supplementing the application to require a showing of technical
qualifications. The NRC should also clarify that the final rule would
not reduce or limit the authority that such applicants would be
entitled to receive upon issuance of their ESPs under the current
regulations (e.g., perform construction of non-safety-related SSCs).
(NEI 4, Dominion 1)
NRC Response: The NRC agrees with the commenters that the final LWA
rule does not require any change to ESP applications filed before the
effective date of the rule. Upon further consideration, the NRC has
decided to include a ``grandfathering'' provision in the final rule
which will provide that ESP applications which are under consideration
as of the effective date of the final LWA rule, which include a request
to conduct Sec. 50.10(e)(1) activities, need not comply with the
``content of application'' requirements in the final rule.
The NRC does not agree with the commenter's view that the final
rule and/or the SOC for the final rule should clarify that the current
ESP applicants should be provided with the authority to conduct LWA
activities under the former provisions of Sec. 50.10(e)(1), that is,
not be bound by the final LWA rule's provisions. The final LWA rule
does allow excavation without an LWA. However, the NRC continues to
believe that pile driving and other subsurface preparation should be
considered construction, inasmuch as none of the comments received
addressed this matter or brought information to the NRC's attention
that suggests that the NRC's regulatory basis for its position should
be reconsidered (the public comments received only addressed excavation
per se, and did not mention pile driving or other subsurface
preparation). In addition, as discussed elsewhere in this SOC, the NRC
has redefined and limited the SSCs whose construction requires an LWA,
construction permit, or combined license. Thus, the NRC believes that
the current ESP applicants will have sufficient authority and
flexibility under the final rule, without any grandfathering of the LWA
provisions. Furthermore, regulatory stability from the standpoint of
backfitting is not relevant, inasmuch as it has been the Commission's
longstanding position that backfitting does not protect an applicant
from changes to regulatory requirements.
Comment: The commenter states that proposed Sec. 50.10(c)(3)(i)
requires the LWA application to: (1) Describe the design and
construction information otherwise required to be submitted for a
combined license, but limited to the portions of the facility that are
within the scope of the limited work authorization; and (2) Demonstrate
compliance with ``technically relevant Commission requirements in 10
CFR Chapter I'' applicable to the design of those portions of the
facility within the scope of the limited work authorization, is unduly
vague. If specific technical requirements are deemed applicable, they
should be justified and identified in the rule. (Dominion 3)
NRC Response: The NRC disagrees with the commenter that the
language of Sec. 50.10(c)(3)(i) (Sec. 50.10(d)(3)(i) in the final LWA
rule) is unnecessarily vague, or that it would be practical for the
rule language to specify the technical requirements which are deemed
applicable. The technical requirements that are applicable will depend
upon the scope and nature of LWA activities requested. Furthermore,
this regulatory requirement is modeled on the provisions of former
Sec. Sec. 50.10(e)(2), (e)(3)(i), and (e)(3)(ii), for which the NRC
and the nuclear power industry has had decades of experience. The
commenter did not present either alternative language that would
address its concern with vagueness, or otherwise present a list of NRC
technical requirements that should be specified as applicable. The
original commenter whose submission led to this
[[Page 57425]]
rulemaking did not identify this aspect of the former rule as
presenting a problem which should be addressed as part of the
reformulated rule. To modify the rule language to include a list of
technically relevant requirements would likely require renoticing of
this aspect of the rule for public comment, which would delay issuance
of the rule with little benefit, given the 30+ years of experience in
implementing analogous rule language in the former versions of Sec.
50.10. Accordingly, the Commission declines to adopt the commenter's
proposal, and no change from the supplemental proposed LWA rule was
made in response to this comment.
Comment: The commenter states that the finding of technical
qualifications should be limited to LWA activities applicable to
safety-related activities, because there are no design, construction,
or technical requirements in the NRC's rules applicable to non-safety-
related construction work. (Dominion 4)
NRC Response: The NRC disagrees with the commenter's proposal,
inasmuch as it is based on the longstanding industry misconception that
the NRC's regulations in part 50 apply only to ``safety-related'' SSCs
and activities relevant to those SSCs, as that term is defined in 10
CFR 50.2. This is not a correct understanding. For example, the general
design criteria in 10 CFR part 50, appendix A, apply to SSCs
``important to safety; that is, structures, systems, and components
that provide reasonable assurance that the facility can be operated
without undue risk to the health and safety of the public.'' Id.
(first introductory paragraph). There are numerous other regulations
applicable to the design, construction, and operation of a nuclear
power facility whose applicability extends beyond ``safety-related''
SSCs. It is consistent with Section 182.a of the AEA and the NRC's past
practice that a technical qualifications finding be made as part of the
finding necessary for NRC issuance of an LWA. Accordingly, the NRC
declines to adopt the commenter's proposal, and no change from the
supplemental proposed LWA rule was made in response to this comment.
Comment: The commenter states that the reference in Sec.
50.10(d)(2) to Sec. 52.17(c) should be changed to Sec.
50.10(c)(3)(iii), inasmuch as the requirement for a redress plan has
been removed from Sec. 52.17(c) and relocated in Sec.
50.19(c)(3)(iii). (Progress Energy 3)
NRC Response: The NRC agrees with the substance of this comment.
Inasmuch as the proposed rule has been reorganized in the final rule,
the final rule refers to the appropriate paragraph.
Comment: The commenter states that an LWA is not the functional
equivalent of an ESP. There are significant differences between them,
and the time and level of NRC staff effort necessary to conduct an LWA
review should not be as great as for an ESP review. The NRC should
clarify the differences between an LWA and ESP in the SOC for the final
rule. (Areva 4)
NRC Response: NRC agrees with the commenter that there are some
significant differences between an LWA review and an ESP. In
particular, issuance of an LWA does not require the NRC to make a
finding with respect to site suitability from either a safety or
environmental standpoint (although the LWA applicant may, under
Sec. Sec. 2.101(a)(9), 52.17, and 51.49 of the final rule, submit an
environmental report addressing the issues of alternative, obviously
superior sites, and the impacts of construction and operation of the
nuclear power plant, in which case the NRC would make a finding on all
environmental matters, including alternative, obviously superior
sites). The NRC has modified the section-by-section discussion of the
SOC to make clearer the requirements for obtaining an LWA.
Comment: The commenter states that proposed Sec. Sec. 51.76(e) and
51.49(e) are slightly inconsistent, in that the former refers to the
LWA applicant's authority to incorporate by reference an earlier EIS
prepared for the same site if a construction permit was issued but
construction never commenced. By contrast, Sec. 51.49(e) refers to the
LWA applicant's environmental report to reference an earlier EIS
prepared for the same site if a construction permit was issued but
construction was never completed. The commenter also states that
inasmuch as the NRC intended to adopt the more expansive concept
embodied in Sec. 51.49(e), the final rule should modify Sec. 51.76(e)
to be consistent to refer to construction not being ``completed.'' (NEI
3)
NRC Response: The NRC agrees, and the language of Sec. 51.76(e)
has been conformed in the final rule. In addition, conforming changes
were made in the subtitles of Sec. Sec. 51.49(e) and 51.76(e), and the
relevant SOC discussion.
III. Discussion
A. History of the NRC's Concept of Construction and the LWA
Section 101 of the AEA prohibits the manufacture, production, or
use of a commercial nuclear power reactor, except where the
manufacture, production, or use is conducted under a license issued by
the NRC. While construction of a nuclear power reactor is not mentioned
in Section 101, Section 185 of the AEA requires that the NRC grant
construction permits to applicants for licenses to construct or modify
production or utilization facilities, if the applications for such
permits are acceptable to the NRC. However, the term construction is
not defined anywhere in the AEA or in the legislative history of the
AEA.
To prevent the construction of production or utilization facilities
before a construction permit is issued, the NRC proposed a regulatory
definition of construction in 1960 (25 FR 1224; February 11, 1960). The
definition of construction was adopted in a final rule that same year
and codified in 10 CFR 50.10(b) (25 FR 8712; September 9, 1960). As
promulgated, Sec. 50.10(b) stated that no person shall begin the
construction of a production or utilization facility on a site on which
the facility is to be operated until a construction permit had been
issued. Construction was defined in Sec. 50.10(b) as including:
* * * pouring the foundation for, or the installation of, any
portion of the permanent facility on the site; but [not to] include:
(1) Site exploration, site excavation, preparation of the site for
construction of the facility and construction of roadways, railroad
spurs, and transmission lines; (2) Procurement or manufacture of
components of the facility; (3) Construction of non-nuclear
facilities (such as turbogenerators and turbine buildings) and
temporary buildings (such as construction equipment storage sheds)
for use in connection with the construction of the facility; and (4)
With respect to production or utilization facilities, other than
testing facilities, required to be licensed pursuant to Section 104a
or Section 104c of the Act, the construction of buildings which will
be used for activities other than operation of a facility and which
may also be used to house a facility. (For example, the construction
of a college laboratory building with space for installation of a
training reactor is not affected by this paragraph.) (25 FR 8712;
September 9, 1960)
The definition of construction remained unchanged until 1968, when
the driving of piles was specifically excluded from the definition (33
FR 2381; January 31, 1968). This change was implemented by amending
Sec. 50.10(b)(1) to read: ``Site exploration, site excavation,
preparation of the site for construction of the reactor, including the
driving of piles, and construction of roadways, railroad spurs, and
transmission lines.'' The rationale for this change, as articulated in
the proposed rule (32 FR 11278; August 3, 1967), seems to have been
that the driving of piles was closely related to ``preparation of the
site for
[[Page 57426]]
construction'' and that the performance of this type of site
preparation activity would not affect the NRC's subsequent decision to
grant or deny the construction permit. With the exception of the
exclusion of the driving of piles from the definition of construction
in 1968, the NRC's interpretation of the scope of activities requiring
a construction permit under the AEA has remained largely unchanged.
However, following the enactment of the NEPA, as amended, the NRC
adopted a major amendment to the definition of construction in Sec.
50.10 (37 FR 5745; March 21, 1972). In that rulemaking, the NRC adopted
a much more expansive concept of construction. Specifically, a new
Sec. 50.10(c) was adopted stating that no person shall effect
``commencement of construction'' of a production or utilization
facility on the site on which the facility will be constructed until a
construction permit has been issued. ``Commencement of construction''
was defined as:
* * * any clearing of land, excavation, or other substantial
action that would adversely affect the natural environment of a site
and construction of non-nuclear facilities (such as turbogenerators
and turbine buildings) for use in connection with the facility, but
does not mean: (1) Changes desirable for the temporary use of the
land for public recreational uses, necessary boring to determine
foundation conditions or other preconstruction monitoring to
establish background information related to the suitability of the
site or to the protection of environmental values; (2) Procurement
or manufacture of components of the facility; and (3) With respect
to production or utilization facilities, other than testing
facilities, required to be licensed pursuant to Section 104a or
Section 104c of the Act, the construction of buildings which will be
used for activities other than operation of a facility and which may
also be used to house a facility * * * (37 FR 5748; March 21, 1972)
The NRC explained that expansion of the NRC's permitting authority
was:
[C]onsistent with the direction of the Congress, as expressed in
Section 102 of the NEPA, that, to the fullest extent possible, the
policies, regulations, and public laws of the United States shall be
interpreted and administered in accordance with the policies set
forth in that Act. Since site preparation constitutes a key point
from the standpoint of environmental impact, in connection with the
licensing of nuclear facilities and materials, these amendments will
facilitate consideration and balancing of a broader range of
realistic alternatives and provide a more significant mechanism for
protecting the environment during the earlier stages of a project
for which a facility or materials license is being sought. (37 FR
5746; March 21, 1972)
Thus, the NRC's interpretation of its responsibilities under NEPA,
not the AEA, was the driving factor leading to its adoption of Sec.
50.10(c).\3\
---------------------------------------------------------------------------
\3\ See Carolina Power and Light Company (Shearon Harris Nuclear
Power Plant, Units 1, 2, 3 and 4), 7 AEC 939, 943 (June 11, 1974)
(hereinafter Shearon Harris) (``The regulations were revised in
1972, not because of any requirements of the Atomic Energy Act, but
rather to implement the precepts of NEPA which had then recently
been enacted.''); Kansas Gas and Electric Company (Wolf Creek
Nuclear Generating Station, Unit No. 1), 5 NRC 1, 5 (January 12,
1977) (explaining that NEPA led the AEC to amend its regulations in
several respects, including the changes to Sec. 50.10(c)).
---------------------------------------------------------------------------
The NRC issued Sec. 50.10(e) two (2) years after the expansion of
the NRC's permitting authority resulting from the issuance of Sec.
50.10(c) (39 FR 14506; April 24, 1974). This provision created the
current LWA process, which was added to allow site preparation,
excavation, and certain other onsite activities to proceed before
issuance of a construction permit. Before the issuance of Sec.
50.10(e), NRC permission to engage in site preparation activities
before a construction permit was issued could only be obtained via an
exemption issued under Sec. 50.12. Section 50.10(e) allowed the NRC to
authorize the commencement of both safety-related (known as ``LWA-2''
activities) and non-safety-related (known as ``LWA-1'' activities)
onsite construction activities before issuance of a construction
permit, if the NRC had completed a site suitability report and a final
environmental impact statement (FEIS) on the issuance of the
construction permit, and the presiding officer in the construction
permit proceeding had made the requisite site suitability,
environmental and, in the case of an LWA-2, safety-related findings.
B. NRC's Concept of Construction and the AEA
Industry stakeholders have stated that the business environment,
today and in the foreseeable future, requires that new plant applicants
minimize the time interval between a decision to proceed with the
construction of a nuclear power plant and the start of commercial
operation. To achieve that goal, these stakeholders have indicated that
non-safety-related ``LWA-1'' activities would need to be initiated up
to 2 years before the activities currently defined as ``construction''
in Sec. 50.10(b). NEI believes that the current LWA approval process
would constrain the nuclear industry's ability to use modern
construction/management practices and needlessly add 18 months to
estimated construction schedules for new plants that did not reference
an early site permit with LWA authority.
Based upon the representations of the industry, the NRC agrees that
the agency's regulatory processes should be revised and optimized to
ensure that these stakeholder's needs are met, consistent with the
NRC's statutory obligations and in a manner that is fair to all
stakeholders. Accordingly, the NRC is adopting this LWA final rule
which revises 10 CFR 50.10, and makes conforming changes in 10 CFR
parts 2, 51, and 52. The LWA final rule narrows the scope of activities
requiring permission from the NRC in the form of an LWA by eliminating
the concept of ``commencement of construction'' formerly described in
Sec. 50.10(c) and the authorization formerly described in Sec.
50.10(e)(1). Instead, under the final LWA rule, NRC authorization would
only be required before undertaking activities that have a reasonable
nexus to radiological health and safety and/or common defense and
security for which regulatory oversight is necessary and/or most
effective in ensuring reasonable assurance of adequate protection to
public health and safety or common defense and security. While the
NRC's redefinition of ``construction'' will result in fewer activities
requiring NRC permission in the form of an LWA, construction permit, or
combined license, it will also define certain activities (such as the
driving of piles) that are currently excluded from the regulatory
definition of construction given in Sec. 50.10(b), as construction
requiring such NRC review and approval.
The LWA final rule also provides an optional, phased application
and approval procedure for construction permit and combined license
applicants to obtain LWAs. An applicant may either submit its LWA
application jointly with a complete construction permit or combined
license application, or submit it in two parts, with the information
relevant to issuance of an LWA submitted up to 18 months in advance of
the remainder of the application addressing the underlying construction
permit or combined license. Furthermore, under the LWA final rule, the
NRC need not address the suitability of the site for the operation of a
nuclear power plant before issuing an LWA. Site suitability will be
addressed as part of the NRC's consideration of the underlying
construction permit or combined license. Moreover, under the LWA final
rule the applicant could seek a separate determination on site
suitability issues under subpart F of 10 CFR part 2.
The phased approach in the final LWA rule also provides for an
environmental review and approval
[[Page 57427]]
process for LWA requests which allows the NRC to grant an applicant
permission to engage in LWA activities after completion of a limited
EIS addressing those activities, but before completion of the
comprehensive EIS addressing the underlying request for a construction
permit or combined license. The final LWA rule also delineates the
environmental review required in situations where the LWA activities
are to be conducted at sites for which the NRC has previously prepared
an EIS for the construction and operation of a nuclear power plant, and
for which a construction permit was issued, but construction of the
plant was never completed.
The NRC concludes that the LWA final rule is fully consistent with
the NRC's radiological health and safety and common defense and
security responsibilities under the AEA.\4\ As previously mentioned,
the term ``construction'' is not defined in the AEA or in the
legislative history of the AEA. Instead of expressly defining the term
in the AEA, Congress entrusted the agency with the responsibility of
determining what activities constitute construction.\5\ The NRC has
determined that the site-preparation activities that would no longer be
considered construction under this proposed rule do not have a
reasonable nexus to radiological health and safety, or the common
defense and security. Accordingly, the NRC concludes that its
definition of the term, ``construction,'' is reasonable and complies
with the AEA.
---------------------------------------------------------------------------
\4\ See State of New Hampshire v. Atomic Energy Commission, 406
F.2d 170, 174-75 (1st Cir. 1969).
\5\ Shearon Harris, 7 AEC 939.
---------------------------------------------------------------------------
The NRC also concludes that issuance of the LWA in advance of a
consideration of site suitability is reasonable and complies with the
AEA. Any work under the LWA is done at the risk of the LWA holder.
C. NRC's LWA Rule Complies With NEPA
1. NRC's Concept of Construction is Consistent With the Legal Effect of
NEPA
The definition of construction in the LWA final rule is consistent
with the legal effect of NEPA. Section 50.10(c) was originally added to
part 50 due to the interpretation that the enactment of NEPA, not a
change in the powers given to the agency in the AEA, required the NRC
to expand its permitting/licensing authority. However, subsequent
judicial decisions have made it clear that NEPA is a procedural statute
and does not expand the jurisdiction delegated to an agency by its
organic statute.\6\ Therefore, while NEPA may require the NRC to
consider the environmental effects caused by the exercise of its
permitting/licensing authority, the statute cannot be the source of the
expansion of the NRC's authority to require construction permits,
combined licenses, or other forms of permission for activities that are
not reasonably related to radiological health and safety or protection
of the common defense and security. Since NEPA cannot expand the NRC's
permitting/licensing authority under the AEA, the elimination of the
blanket inclusion of site preparation activities in the definition of
construction under Sec. 50.10(c) does not violate NEPA.
---------------------------------------------------------------------------
\6\ See,e.g., Robertson v. Methow Valley Citizens Council, 490
US 332, 350-52 (1989); Natural Resources Defense Counsel v. U.S.
Environmental Protection Agency, 822 F.2d 104, 129 (D.C. Cir 1987);
Kitchen v. Federal Communications Commission, 464 F.2d 801, 802
(D.C. Cir. 1972).
---------------------------------------------------------------------------
2. NRC's Concept of the ``Major Federal Action'' Is Consistent With
NEPA Law
The AEA does not authorize the NRC to require an applicant to
obtain permission before undertaking site preparation activities that
do not implicate radiological health and safety or common defense and
security. As a general matter, the NRC considers these activities to
involve ``non-Federal action'' for the purposes of implementing its
NEPA responsibilities. Generally, non-Federal actions are not subject
to the requirements of NEPA.\7\ Further, the NRC believes that these
non-Federal site preparation activities would not generally be
``federalized'' if the NRC were to ultimately grant a combined license
or construction permit. The grant of a construction permit or combined
license by the NRC is not a legal condition precedent to these non-
Federal, site preparation activities. While the NRC recognizes that
there may be a ``but for'' causal relationship between certain non-
Federal site preparation activities and the major Federal action of
issuing a construction permit or combined license, such a ``but for''
causal relationship is not sufficient to require non-Federal, site
preparation activities to be treated as Federal action for the purposes
of NEPA.\8\
---------------------------------------------------------------------------
\7\ Save the Bay, Inc., v. U.S. Army Corps of Engineers, 610
F.2d 322, 326 (5th Cir. 1980).
\8\ See Landmark West! v. U.S. Postal Service, 840 F. Supp. 994,
1006 (S.D.N.Y. 1993) (citing cases).
---------------------------------------------------------------------------
In addition, under the narrowed definition of construction in the
LWA final rule, the NRC concludes that it does not have the ability or
discretion to influence or control the non-Federal, site preparation
activities to the extent that its influence or control would constitute
practical or factual veto power over the non-Federal action. Further,
the NRC does not believe that allowing the non-Federal, site
preparation activities to be undertaken would restrict its
consideration of alternative sites or the need to assess whether there
is an ``obviously superior'' site. Specifically, while the NRC
recognizes that narrowing the definition of construction may result in
substantial changes to the physical properties of a site, many of the
fundamental elements that enter into a determination of the existence
of an ``obviously superior'' site would not be affected by the changes
to those physical properties. For example, seismology would not be
affected in any significant way by the non-Federal site preparation
activities. However, while the effects caused by the non-Federal, site
preparation activities would not be considered effects of the NRC's
licensing action, the effects of the non-Federal activities would be
considered during any subsequent ``cumulative impacts'' analysis.
Specifically, the effects of the non-Federal activities will be
considered in order to establish a baseline against which the
incremental effect of the NRC's major Federal action (i.e., issuing an
LWA, construction permit, or combined license) would be measured. These
incremental impacts may be additive or synergistic. To ensure that the
NRC has sufficient information to perform the cumulative impacts
analysis in a timely fashion, the final LWA rule includes a
requirement, in Sec. 51.45(c), for the environmental report submitted
by an applicant for an ESP, construction permit, or combined license to
include a description of impacts of the applicant's preconstruction
activities at the proposed site (i.e., the activities listed in
paragraph (b)(1) through (8) in the definition of construction
contained in Sec. 51.4) that are necessary to support the construction
and operation of the facility which is the subject of the LWA,
construction permit, or combined license application, and an analysis
of the cumulative impacts of the activities to be authorized by the
LWA, construction permit, or combined license in light of the
preconstruction impacts.
3. NRC's Phased Approval Approach Is Not Illegal Segmentation Under
NEPA
The phased application and approval of LWAs does not raise the
concerns underlying the prohibition of segmentation under NEPA law.
Generally, the NEPA segmentation
[[Page 57428]]
problem arises when the environmental impacts of projects are evaluated
in a piecemeal fashion and, as a result, the comprehensive
environmental impacts of the entire Federal action are never considered
or are only considered after the agency has committed itself to
continuation of the project. Another associated segmentation problem
arises when pieces of a Federal action are evaluated separately and, as
a result, none of the individual pieces are considered ``major Federal
actions'' requiring an EIS.\9\
---------------------------------------------------------------------------
\9\ Daniel R. Mandelker, NEPA Law and Litigation, 9-25 (2nd ed.
2004).
---------------------------------------------------------------------------
Neither of these segmentation concerns are presented by the
approach embodied in the LWA final rule. First, under both LWA
application options in the LWA final rule, the environmental effects
associated with the LWA activities and the project as a whole (i.e.,
issuance of a construction permit or combined license) would be
evaluated in an EIS. Therefore, the segmentation problem of considering
a project in phases, thereby avoiding completion of an EIS, is not an
issue. In addition, all of the environmental impacts associated with
the construction and operation of the proposed plant, including the
impacts associated with the LWA activities, would be considered
together, through incorporation by reference, in the EIS prepared on
the construction permit or combined license application. This
comprehensive consideration of environmental impacts would take place
before the NRC is committed to issuing any construction permit or
combined license. The fact that the NRC will not have prejudged the
ultimate decision of whether to grant a construction permit or a
combined license by issuing the LWA, coupled with the requirement that
the site redress plan be implemented in the event that the permit or
license is ultimately not issued, also ensures that issuance of the LWA
would not foreclose reasonable alternatives.
In addition, the proposed application and approval process is
consistent with the NRC's previously expressed position that NEPA does
not, as a general matter, prohibit an agency from undertaking part of a
project without a complete environmental analysis of the whole
project.\10\ The key factors used to support the Commission's position
in Clinch River were: (1) That the site preparation activities in that
case would not result in irreversible or irretrievable commitments to
the remaining portions of the project, and (2) The environmental
impacts of the site preparation activities allowed in that case were
substantially redressable.\11\
---------------------------------------------------------------------------
\10\ See Tennessee Valley Authority (Clinch River Breeder
Reactor Plant), 16 NRC 412, 424 (August 17, 1982) (hereinafter
Clinch River).
\11\ Id.
---------------------------------------------------------------------------
These considerations are reflected in the provisions of the LWA
final rule. Specifically, Sec. 50.10(f) states that any activity
undertaken pursuant to an LWA are entirely at the risk of the
applicant, that the issuance of the LWA has no bearing on whether the
construction permit or combined license should be issued, and that the
EIS associated with the underlying request will not consider the sunk
costs associated with the LWA activities. In addition, Sec.
50.10(d)(3) requires an applicant requesting an LWA to submit a plan
for redress of the activities permitted by the LWA, which would to be
implemented in the event that the LWA holder is ultimately not issued a
construction permit or combined license. The redress plan would achieve
this objective by addressing impacts resulting from LWA activities
(e.g., pile driving, placement of permanent retaining walls in
excavations, and construction of foundations for SSCs within the scope
of the LWA final rule). Impacts associated with pre-LWA activities
would not be addressed in the redress plan. Further, Sec. 50.10(f)
requires that the site redress plan be implemented within a reasonable
time and that the redress of the site occur within 18 months of the
Commission's final decision denying a construction permit or combined
license.
It should be noted that while redress of site impacts may have the
practical effect of mitigating some environmental impacts, the redress
plan is not a substitute for a thorough evaluation of environmental
impacts, or development of mitigation measures that may be necessary to
provide relief from environmental impacts associated with the proposed
LWA activities. The primary purpose of the site redress plan is to
ensure that impacts associated with any LWA activities performed at the
site will not prevent the site from being used for a permissible, non-
nuclear alternative use. In this way, the redress plan helps to
preserve the NRC's ability to objectively evaluate an application for a
construction permit or combined license, despite the fact that LWA
activities have been undertaken at the site.
In sum, the LWA final rule does not constitute unlawful
segmentation in view of the provisions ensuring that the issuance of an
LWA does not predispose or bias the NRC's decision on the underlying
construction permit or combined license application.
D. Consideration of Activities as ``Construction''
1. Driving of Piles
A significant change proposed in the LWA supplemental proposed rule
is the inclusion of the driving of piles for certain SSCs in the
definition of construction that are not currently defined as
construction in Sec. 50.10(b). Although the driving of piles was not
expressly included in the definition of ``construction'' contained in
Sec. 50.10(b) before the amendment of Sec. 50.10(b)(1) in 1968, this
activity was generally considered to be encompassed in the existing
definition of construction at that time (See 33 FR 2381; January 31,
1968). The 1967 proposed rule suggested that the driving of piles be
expressly excluded from the definition of construction because that
activity ``is closely related to, and may be appropriately included
in'' site preparation activities, which were not considered
construction (32 FR 11278; August 3, 1967).\12\ The rationale for non-
inclusion of pile driving (and site preparation activities generally)
in the definition of construction seems to have been that these
activities would have no effect on the NRC's ultimate decision to grant
or deny a construction permit, and that these activities were
undertaken entirely at the applicant's risk. See 32 FR 11278; August 3,
1967.
---------------------------------------------------------------------------
\12\ The proposed rule language was issued without modification
in the final rule. (33 FR 2381; January 31, 1968.)
---------------------------------------------------------------------------
The NRC does not believe that the exclusion of pile driving from
the definition of construction should hinge on these factors. The
Commission believes that the driving of piles for certain SSCs (as
discussed separately below) has a reasonable nexus to radiological
health and safety, and/or common defense and security and, therefore,
is properly considered ``construction'' as that term is used in Section
185 of the AEA. In addition, the inclusion of these activities in the
definition of construction (i.e., requiring an LWA before they are
undertaken), coupled with the phased approval process suggested in this
supplemental proposed rule, would allow for early resolution of the
safety issues associated with these activities. Early resolution of
safety issues is consistent with the general rationale underlying the
licensing and permitting processes provided in 10 CFR part 52.
Accordingly, the final rule's definition of construction includes the
driving of piles for certain SSCs.
[[Page 57429]]
2. Excavation
The LWA supplemental proposed rule would have included excavation
within the definition of construction. The inclusion of excavation
within the ambit of construction was based upon two factors: (1)
Excavation activities in the past have uncovered potentially adverse
geologic, soil, and hydrological conditions not anticipated by the
construction permit applicant, which have resulted in design changes;
and (2) Excavation activities in the past have caused unanticipated
damage to surrounding native rock, which had to be corrected by the
construction permit holder. The NRC believed that, in these situations,
these considerations provided the ``reasonable nexus to radiological
health and safety and/or common defense and security'' necessary to
include excavation in the definition of construction.
Upon consideration of stakeholder comments and further evaluation,
the NRC has determined that it is not necessary to include excavation
within the definition of construction, thus requiring some kind of NRC
review and approval before undertaking excavation, to ensure public
health and safety or common defense and security in the situations
noted previously. With respect to geologic, soils, and hydrological
matters, prior NRC review and approval of excavation is not necessary
to ensure that any adverse geologic, soil, or hydrological conditions
that result in the need for design changes or some other form of
mitigation are considered in NRC's review of the associated LWA,
construction permit, or combined license application. In the situation
where a potential applicant performs excavation activities before
submitting its LWA, construction permit, or combined license
application, 10 CFR 52.6(a) requires that information provided to the
Commission by an applicant for a license be complete and accurate in
all material respects. In the situation where an applicant performs
excavation activities after submitting its LWA, construction permit, or
combined license application, 10 CFR 52.6(b) requires the applicant to
notify the Commission of information identified by the applicant as
having, for the regulated activity, a significant implication for
public health and safety or common defense and security. The staff
believes that 10 CFR 52.6 provides an equally-acceptable way of
ensuring public health and safety if excavation is eliminated from the
definition of construction for those limited situations where
excavation activities uncover potentially adverse geologic, soil, and
hydrological conditions not anticipated by the applicant, or if
excavation activities cause unanticipated damage to the surrounding
native rock. The LWA, construction permit, and combined license
applicant, as applicable, would be responsible--as is currently the
case--for adequately describing the geologic, soil, and hydrologic
conditions of the site. The difference with the approach in this final
rule is that the approved site description will, in many cases, be
based upon actual knowledge of the conditions as revealed or confirmed
by the excavation activities, and not only on reasonable assumptions
based upon extrapolations from test borings and other indirect
information. Therefore, in many cases, the actual foundation and
structural design to be approved at the construction permit or combined
license stage would be based upon actual geologic, soils, and
hydrological information as revealed or confirmed by the excavation.
For these reasons, the Commission concludes that existing
regulatory mechanisms provide reasonable assurance of public health and
safety and common defense and security without imposition of the
regulatory mechanism of prior NRC review and approval of excavation
activities. Accordingly, the LWA final rule does not define excavation
as being within the ambit of construction.
3. Temporary Structures and Activities in the Excavation
Construction, under the LWA final rule, includes the placement/
installation of backfill, concrete, or permanent retaining walls within
an excavation. These activities involve the placement/installation of
permanent parts of the overall facility, and therefore are properly
considered ``construction.'' By contrast, the placement/installation of
temporary SSCs which will not become part of the final facility, and
therefore are removed, should not be treated as ``construction,''
inasmuch as they have no ongoing nexus to radiological health and
safety or common defense and security. Accordingly, activities in the
excavation for SSCs within the scope of construction, such as the
placement/installation of temporary drainage, erosion control,
retaining walls, environmental mitigation, are not considered to be
within the purview of ``construction,'' so long as these temporary
items are removed from the excavation before fuel load. The NRC chose
fuel loading as a convenient, well understood and clear event for
delineating the time by which temporary SSCs must be removed from the
excavation, in order for those temporary SSCs to be excluded from the
definition of construction.
4. Construction SSCs
The LWA supplemental proposed rule revised the former definition of
construction in 10 CFR 50.10(c) to include the onsite, in-place
fabrication, erection, integration, or testing of any SSC required by
the Commission's rules and regulations to be described in the site
safety analysis report, preliminary safety analysis report, or final
safety analysis report. This definition of construction included
basically all SSCs of a facility, except for those SSCs that were
specifically excluded by the proposed definition (e.g., potable water
systems). However, as stated in the supplemental proposed rule, the
Commission has determined that construction should include all of the
activities that have a reasonable nexus to radiological health and
safety, or common defense and security.
Upon consideration of stakeholder comments and further evaluation,
the NRC has determined that there may be some SSCs of a facility which
are required to be described in the FSAR, but which do not have a
reasonable nexus to radiological health and safety or the common
defense and security. These SSCs are those which are required to be
described in the FSAR to provide contextual information for
understanding the overall design and operation of the facility, but
which do not actually directly affect the radiological health and
safety of the public or the common defense and security, and their
indirect effect on such health and safety or common defense and
security is so low as to be considered negligible. The determination of
SSCs which do not have a reasonable nexus to radiological health and
safety or common defense and security depends on the design of the
facility. An example SSC is the administration building. However, an
administration building that includes the technical support center
would fall within the scope of SSCs covered by the definition of
construction. In sum, the NRC has clarified and narrowed the scope of
SSCs falling within the scope of construction to exclude those SSCs
which have no reasonable nexus to radiological health and safety or
common defense and security.
For the LWA final rule, the scope of SSCs falling within the
definition of construction was derived from the scope of SSCs that are
included in the program for monitoring the effectiveness of maintenance
at nuclear power plants, as
[[Page 57430]]
defined in 10 CFR 50.65(b). This definition is well understood and
there is good agreement on its implementation. The NRC has supplemented
the definition in Sec. 50.65(b) to include the SSCs that are necessary
to comply with 10 CFR 50.48 and criterion 3 of 10 CFR part 50, appendix
A, and the onsite emergency facilities, that is, technical support and
operations support centers, that are necessary to comply with 10 CFR
50.47 and 10 CFR part 50, appendix E. These SSCs were added because
they have a reasonable nexus to radiological health and safety. The
SSCs that are necessary to comply with 10 CFR part 73 were added
because they are required for the common defense and security.
E. Phased Application and Approval Process
Another significant change in this final rule is the modification
of the procedure for obtaining LWA approval by implementing an optional
phased application and approval process. Specifically, Sec.
2.101(a)(9) allows applicants for construction permits and combined
licenses the option of submitting either: (1) A complete application,
or (2) a two-part application with part one including information
required for the NRC to make a decision on the applicant's request to
undertake LWA activities, and part two containing all other information
required to obtain the underlying license or permit. The final rule
allows the NRC to consider the environmental impacts attributable to
the requested LWA activities separately, either as part of a
comprehensive EIS in the case where a complete application is
submitted, or in a separate EIS addressing only the LWA activities in
the case of a two-part application. After consideration of the
environmental impacts and the relevant safety-related issues associated
with the LWA activities, the NRC may allow the applicant to undertake
the LWA activities, even if the EIS on the underlying request (i.e.,
construction permit or combined license) is not complete.
The NRC believes that this phased application and approval process
is more efficient because it prevents unnecessary delay in nuclear
power plant construction schedules. This delay would result if issuance
of an LWA for safety-related activities were delayed until the final
EIS and adjudicatory hearing on the entire underlying license
application were complete. In addition, the final rule's application
and approval process should result in the timely resolution of relevant
safety and environmental issues at an earlier stage in the licensing
process. As previously discussed, the NRC believes that these
efficiencies can be gained without compromising the agency's NEPA
responsibilities, as the phased approach presented in this supplemental
proposed rule does not constitute illegal segmentation.
F. EIS Prepared, but Facility Construction Was Not Completed
The LWA final rule also addresses the situation where a request is
made to perform LWA activities at a site for which an EIS has
previously been prepared for the construction and operation of a
nuclear power plant, and a construction permit has been issued, but
construction of the plant was never completed. In this special
situation, the final rule allows an applicant to reference the previous
EIS in its environmental report, but requires that the applicant
identify any new and significant information material to the matters
required to be addressed in the proposed Sec. 51.49(a). Further, in
these special cases the final rule provides that the NRC will
incorporate by reference the previous EIS when preparing its draft EIS
on the LWA activities. The draft EIS on the LWA request is limited to
the consideration of any new and significant information dealing with
the environmental impacts of construction, relevant to the activities
to be carried out under the LWA. Further, in a hearing on issuance of
an LWA at such sites, the presiding officer is limited to determining
whether there is new and significant information pertaining to the
environmental impacts of the construction activities encompassed by the
previous EIS that are analogous to the activities to be conducted under
the LWA. The presiding officer would evaluate new and significant
information in determining whether an LWA should be issued as proposed
by either the Director of the Office of New Reactors or the Director of
the Office of Nuclear Reactor Regulation, as applicable.
This provision is designed to gain efficiency by using existing
EISs to evaluate the environmental impacts of activities to be
performed under an LWA. The Commission believes that this practice is
appropriate because the referenced environmental review will come in
the form of an FEIS prepared by NRC staff for sites on which permission
to construct a nuclear power plant was ultimately granted by the
Commission. The Commission understands that the activities proposed in
a current LWA request may be different from the activities proposed and
analyzed in the previous FEIS referenced by an applicant and relied
upon by NRC staff. However, it is the Commission's intent that if these
differences result in significant changes to the environmental impacts
caused by the LWA activities currently proposed by the applicant, then
the differences should be considered ``new and significant
information'' material to the environmental impacts that may reasonably
be expected to result from the LWA activities. Therefore, these
differences should be addressed in the applicant's environmental
report, analyzed by the NRC staff in a supplement to the existing FEIS,
and considered by the presiding officer.
Further, for the reasons previously discussed in Section C.3 of
this document, the Commission does not believe that authorizing LWA
activities before completion of the FEIS on the combined license or
construction permit will have the effect of prejudging the license/
permit, or foreclosing reasonable alternatives.
G. Commission Action on PRM-50-82
As discussed previously, the Commission is treating the May 25,
2006, comments of NEI on the March 2006 proposed part 52 rule as a
petition for rulemaking, which has been designated PRM-50-82. The
petition was effectively granted when the supplemental proposed LWA
rule was published (71 FR 61330; October 17, 2006). With the adoption
of this final LWA rule, the Commission has completed action on PRM-50-
82.
IV. Section-by-Section Analysis
Part 2--Rules of Practice for Domestic Licensing Proceedings and
Issuance of Orders
Section 2.101, Filing of Application
Section 2.101 is revised by adding a new paragraph (a)(9), which
provides that an applicant for a construction permit or combined
license may submit a request for an LWA either as part of a complete
application under paragraphs (a)(1) through (4), or in two parts under
this paragraph (i.e., a ``phased LWA application''). If the LWA
application is submitted as part of a complete construction permit or
combined license application, the application must include the
information required by Sec. 50.10(d)(3).
If the application is a phased LWA application, the first part must
contain the information required by Sec. 50.10(d)(3) on the LWA, as
well as the general information required of all production and
utilization facility applicants under Sec. 50.33(a) through (f). The
second part of the application must
[[Page 57431]]
contain the remaining information otherwise required to be filed in a
complete application under Sec. 2.101(a)(1) thorough (4). However, the
applicant would have the further option of submitting part two in
additional subparts in accordance with Sec. 2.101(a-1). The second
part (or the first subpart of multiple subparts under Sec. 2.101(a-1))
must be filed no later than 18 months after the filing of part one.
Part two of the application (or the first subpart of any additional
subparts submitted in accordance with Sec. 2.101(a-1)) must be
submitted no later than 18 months after submission of part one of the
application.
An applicant for an ESP may not submit its LWA application in
advance of the underlying ESP application, and therefore is not
permitted to use the procedures of subpart F of part 2, or submit its
application in two parts under Sec. 2.101(a)(9). Similarly, the holder
of an ESP is not permitted to use the procedures of subpart F of part
2, nor to submit its ESP amendment application for LWA authority in two
parts under Sec. 2.101(a)(9).
Section 2.102, Administrative Review of Application
Paragraph (a) of Sec. 2.102 is revised by adding an LWA to the
list of docketed applications for which the NRC staff must establish a
schedule for review of the application.
Section 2.104, Notice of Hearing
The introductory text of paragraph (a) is revised to add LWAs to
the list of application types for which the Commission must issue a
hearing notice. In addition, paragraph (c)(1) is revised to require the
relevant NRC Staff Director to transmit a copy of the notice of hearing
for an application for an LWA to state and local officials. In many
cases, this is a formality, inasmuch as pre-application interactions
between the NRC and the potential LWA applicant will result in informal
contacts with those state and local officials.
Subpart F
The title of subpart F is revised to reflect the broader scope of
matters covered under this section, as described under Sec. 2.600.
Section 2.600, Scope of Subpart
The statement of scope in Sec. 2.600 is revised to reflect the new
set of procedures for phased LWA applications in proposed Sec. Sec.
2.641 through 2.649. A new paragraph (d) is added to refer to
Sec. Sec. 2.641 through 2.649 as containing the applicable procedures
for phased construction permit and combined license applications which
also request LWA authority.
Section 2.606, Partial Decision on Site Suitability Issues
Paragraph (a) of Sec. 2.606, which provides that an LWA may not be
issued without completion of the ``full review'' required by NEPA, is
revised to remove the reference to an LWA, because LWAs are now covered
in Sec. Sec. 2.641 through 2.649.
Section 2.641, Filing Fees
Section 2.641, which is comparable to current Sec. 2.602, provides
that a phased LWA application must be accompanied by the applicable
filing fees in Sec. 50.30(e) and part 170 of this chapter.
Section 2.643, Acceptance and Docketing of Application for Limited Work
Authorization
Section 2.643, which is comparable to current Sec. 2.603,
describes the acceptance and docketing requirements for phased LWA
applications, and the requirement for publication in the Federal
Register of a notice of docketing. Paragraph (a) provides that each
part of the application, when first received, will be treated as a
tendered application and assessed for sufficiency. If the submitted
part of the application is determined to be incomplete, the relevant
Director will inform the applicant. The determination of completeness
will generally be made in 30 days, barring unusual circumstances.
Under paragraph (b), the Director will docket part one of the
application only if that part is ``complete.'' The NRC would use the
existing guidelines and practices for determining the completeness of
applications under this section, as are used in determining
completeness under Sec. 2.101. Upon docketing, the Director will
assign a docket number that will be used throughout the entire
proceeding (including that part of the proceeding on part two of the
application).
Under paragraph (c), the Director will make the designated
distributions to the Governor of the State in which the nuclear power
plant will be located, and publish a notice of docketing in the Federal
Register. Often in practice, the notice of hearing required by the AEA
is included in the notice of docketing, but as with existing
applications, this will remain a matter of discretion by the NRC, who
will determine the most efficient course of action in this regard.
Paragraph (d) provides that part two of the application will be
docketed, as with part one, when it is determined to be complete. The
Commission reiterates that ``part two'' could be submitted in several
subparts if the applicant chose to take advantage of the provisions of
Sec. 2.101(a-1), which provides for submission of applications in
three parts.
Finally, under paragraph (e), the Director is required to publish a
second notice of docketing in the Federal Register for part two of the
application. As with the notice of docketing for part one, the notice
of docketing for part two may also include a notice of hearing on the
second part of the application.
The NRC notes that nothing in Sec. 2.101(a)(9), or any part of
subpart F of part 2, requires that the hearing on part one of the
application be completed and an initial decision issued by the
presiding officer, before part two of the application is filed.
Section 2.645, Notice of Hearing
Section 2.645, which is comparable to current Sec. 2.604, sets
forth the content of the notice of hearing for each of the two parts of
the proceeding. Paragraph (a) provides that the notice of hearing for
part one specify that the hearing will relate only to consideration of
the matters related to Sec. 50.33(a) through (f), and the LWA issues
under review. Although not explicitly stated in this paragraph,
interested persons who seek to intervene in the hearing on part one of
the application must file a petition to intervene in accordance with
the notice of hearing, and Sec. 2.309.
Under paragraph (b), a supplementary notice of hearing will be
published in the Federal Register when part two of the application is
docketed. This provides a second opportunity for interested persons to
file petitions to intervene with respect to the matters relevant to
part two of the application. These petitions must be filed within the
time specified in the notice of hearing, and must meet the applicable
requirements of subpart C of part 2, including the contention
requirements in Sec. 2.309.
Paragraph (c) addresses continued participation in a phased
application involving a request for advance consideration for an LWA.
The provisions of paragraph (c) differ somewhat from the existing
procedures in Sec. 2.604 applicable to phased applications which do
not involve LWAs, in that the Commission has decided not to allow a
party admitted in part one of the proceeding, who did not withdraw or
was not otherwise dismissed, to automatically continue as a party in
phase two of the proceeding. Instead, each party who wishes to
participate in the second phase must submit a second petition to
intervene in accordance with Sec. 2.309. The petition
[[Page 57432]]
need not, however, address the interest and standing requirements in
Sec. 2.309(d). The petition must be filed within the time provided by
the supplementary notice of hearing published in the Federal Register
for part two of the application.
Paragraph (d) makes clear that a non-timely petition for
intervention filed under paragraph (b) (incorrectly referred to as
paragraph (c) in the supplemental proposed rule) must meet the factors
in both 2.309(c)(1)(i) through (iv), as well as 2.309(d). This is no
different than non-timely petitions for intervention filed in ordinary,
non-phased proceedings.
As noted in the Section-by-Section Analysis in this document for
Sec. 2.643, nothing in Sec. 2.101(a)(9) or subpart F of part 2
requires that the hearing on part one of the application be completed
and an initial decision issued by the presiding officer, before part
two of the application is filed. Thus, there may be simultaneous
hearings on parts one and two of the application. However, as reflected
in paragraph (e), the Commission's intent is that the membership of the
Atomic Safety and Licensing Board designated for hearings under part
one be the same as for the hearings under part two, to the extent
practical and consistent with timely completion of each hearing.
Section 2.647 [Reserved]
This section is reserved for future use by the Commission.
Section 2.649, Partial Decisions on Limited Work Authorization
Section 2.649, which is comparable to Sec. 2.606, denotes the
provisions in subparts C and G to part 2 relative to issues such as
oral arguments, immediate effectiveness of the presiding officer's
initial decision, and petitions for Commission review, that apply to
partial initial decisions on an LWA rendered in accordance with this
subpart. This section also states that the LWA may not be issued
without completion of the environmental review required for LWAs under
subpart A of part 51. Finally, this section provides that the time for
the Commission to exercise its review and sua sponte authority is the
same time provided for in part 2 with respect to a final decision on
issuance of a construction permit or combined license.
Part 50--Domestic Licensing of Production and Utilization Facilities
50.10, License Required; Limited Work Authorization
Paragraph (a), which is derived from former Sec. 50.10(b), sets
forth a new definition of ``construction'' for purposes of this section
(the same definition is also used in part 51, see 10 CFR 51.4). The
definition of construction has been substantially modified from the
definition in former Sec. 50.10(b) in both structure and content, and
supersedes the definition of construction in former Sec. 50.10(c). The
new definition is divided into two parts, with the first specifying the
activities deemed to constitute ``construction,'' and the second part
specifying activities which are excluded from the definition.
Under the new definition, excavation is excluded from construction.
Excavation includes the removal of any soil, rock, gravel, or other
material below the final ground elevation to the final parent material.
Thus, all these excavation activities may be conducted without an LWA,
construction permit, or combined license. However, the placement of
permanent, non-structural dewatering materials, mudmats and/or
engineered backfill which are placed in advance of the placement of the
foundation and associated permanent retaining walls for SSCs within the
scope of the definition of construction are not excavation activities,
but instead fall within the scope of construction. Any person or entity
that conducts excavation, however, should be aware that the NRC expects
any subsequent LWA, construction permit, or combined license
application to accurately document and address the conditions exposed
by excavation, to ensure that the NRC will have an adequate basis for
evaluating the relevant portions of the LWA, construction permit, or
combined license application.
Whereas former Sec. 50.10(b) allowed the driving of piles for the
facility without NRC approval, the LWA final rule does not permit
driving of piles for SSCs described in the definition of construction,
unless NRC permission is obtained in the form of an LWA, construction
permit, or combined license. The ``driving of piles'' not related to
ensuring the structural stability or integrity of any SSC within the
scope of the definition of construction does not fall within the
definition of construction in this paragraph, and therefore may be
accomplished without an LWA, construction permit, or combined license.
For example, piles driven to support the erection of a bridge for a
temporary or permanent access road would not be considered
``construction'' under this section and may be performed without an
LWA, construction permit, or combined license.
The