[Federal Register Volume 75, Number 50 (Tuesday, March 16, 2010)]
[Notices]
[Pages 12581-12583]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-5677]
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NUCLEAR REGULATORY COMMISSION
[Docket No. 70-7015; NRC-2009-0187]
Notice of Availability of Environmental Assessment and Finding of
No Significant Impact for Exemption From 10 CFR 30, 40, and 70;
Commencement of Construction Requirements; AREVA Enrichment Services,
Eagle Rock Enrichment Facility, Bonneville County, ID
AGENCY: Nuclear Regulatory Commission.
ACTION: Notice of availability of Environmental Assessment and Finding
of No Significant Impact for Exemption from Commencement of
Construction Requirements.
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FOR FURTHER INFORMATION CONTACT: Mary Adams, Senior Project Manager,
Fuel Manufacturing Branch, Division of Fuel Cycle Safety and
Safeguards, Office of Nuclear Material Safety and Safeguards, U.S.
Nuclear Regulatory Commission, Rockville, Maryland 20852. Telephone:
(301) 492-3113; Fax: (301) 492-3363; e-mail: Mary.Adams@nrc.gov.
SUPPLEMENTARY INFORMATION:
I. Introduction
By letter dated June 17, 2009, Byproduct, Source, and Special
Nuclear Materials License applicant AREVA Enrichment Services, LLC,
(the Applicant) submitted a request to exempt certain activities
described in the license application from the ``commencement of
construction'' provisions of Title 10 of the Code of Federal
Regulations (10 CFR) 70.4, 70.23(a)(7), 30.4, 30.33, 40.4, and
40.32(e). The U.S. Nuclear Regulatory Commission (NRC) staff is
considering issuing an exemption to the Applicant from provisions in 10
CFR 70.4, 70.23(a)(7), 30.4, 30.33, 40.4, and 40.32(e). The exemption
would authorize the Applicant to undertake certain site preparation
activities at its proposed uranium enrichment facility in Bonneville
County, Idaho. Granting this exemption is not a guarantee that the NRC
has decided to issue an operating license to the Applicant. The
Applicant would be undertaking these site preparation activities with
the risk that its license application may later be denied. NRC has
prepared an Environmental Assessment (EA) in support of this exemption
in accordance with the requirements of 10 CFR 51.21 and 51.33. Based on
this EA, the NRC has reached a Finding of No Significant Impact.
II. Summary of the Environmental Assessment
Background
The commencement of construction provisions of 10 CFR 30.33,
40.32(e), and 70.23(a)(7) date back to 1972, when they were initially
codified by the NRC as part of a comprehensive rulemaking pertaining to
all facilities licensed under Parts 30, 40, 50 and 70. These regulatory
provisions remained unchanged until the NRC in 1980 amended its
regulations in 10 CFR part 40. These revisions required that the NRC's
NEPA review be completed prior to authorizing any uranium milling
[[Page 12582]]
activities. NRC also amended 10 CFR parts 30 and 70 to conform to the
amendment of Part 40.
Subsequently, in 2007, the NRC completed a rulemaking amending the
regulations applicable to limited work authorizations (LWAs) for
nuclear power plants (LWA rulemaking), which included a consideration
of issues pertaining to preconstruction and site preparation work
performed by Part 50 (and Part 52) licensees and applicants. As part of
that rulemaking, the NRC modified the scope of activities that are
considered construction and for which a construction permit, combined
license, or LWA is necessary. After noting that the Atomic Energy Act
of 1954, as amended (AEA) does not require an applicant to obtain
permission before undertaking site preparation activities that do not
implicate radiological health and safety or common defense and
security, the NRC developed a revised definition of construction that
excluded certain preparatory activities.
In doing so, the NRC determined that its NEPA obligations and
responsibilities arise only when the NRC undertakes a ``Federal''
action, and that NEPA, a purely procedural statute, does not expand the
NRC's jurisdiction beyond the scope of the AEA. Regarding the site
preparation activities excluded from the LWA definition of
construction, the NRC noted that such activities do not have a
reasonable nexus to radiological health and safety or the common
defense and security, and as such, were ``non-Federal actions.''
Accordingly, these site preparation activities are not subject to the
requirements of NEPA because they are not within the scope of the NRC's
AEA authority. The NRC, therefore, amended its 10 CFR part 51 NEPA
regulations to include a definition of construction that was consistent
with the definition added to 10 CFR 50.10. Site preparation activities
that were deemed not to have a direct nexus to radiological health and
safety were listed in 10 CFR 51.4 as activities not included within the
``construction'' definition.
The NRC's determination that certain site preparation activities
did not constitute ``construction'' impacted the scope of the agency's
NEPA review of such activities. The NRC clarified that because these
site preparation activities lacked a reasonable radiological nexus to
radiological health and safety and/or common defense and security--and
thus did not require NRC approval or oversight--these activities were
not Federal actions within the context of NEPA. Consequently, these
activities would only be considered in the agency's environmental
review to that extent necessary to establish an environmental baseline
against which the incremental effect of the NRC's subsequent major
Federal action (i.e., issuance of a license) would be measured.
While the NRC had previously recognized the need for uniformity in
carefully approving conforming amendments when it modified the
``commencement of construction'' provisions in 1980, no conforming
amendments were made in Parts 30, 40 and 70 when the LWA rulemaking was
finalized in 2007. Ever since, the NRC's ``commencement of
construction'' provisions in Parts 30, 40 and 70 have been inconsistent
with the Part 51 ``construction'' definition. Activities that do not
constitute construction under 10 CFR parts 50, 51, and 52, are viewed
as construction under 10 CFR parts 30, 40 and 70. Site preparation
actions that a materials license applicant or licensee cannot engage
in--absent an exemption--are the same actions that the NRC determined
in the LWA rulemaking were not within the scope of the agency's
licensing review under the AEA. In short, while 10 CFR 30.33, 40.32(e),
and 70.23(a)(7) specifically cite the need to perform a Part 51
environmental analysis, the terms of 10 CFR 30.4, 30.33, 40.4,
40.32(e), 70.4 and 70.23(a)(7) are now inconsistent with 10 CFR part 51
as modified by the LWA rulemaking.
Identification of the Proposed Action
NRC proposes to grant an exemption that will allow the Applicant to
conduct certain site preparation activities that are currently allowed
under 10 CFR 51.4, notwithstanding the provisions of 10 CFR
30.33(a)(5), 40.32(e) and 70.23(a)(7). The scope of the Applicant's
June 17, 2009, exemption request includes the following nine items. NRC
staff, as part of its safety review of the request, is considering
approving each item on the list as an exempted activity.
Clearing the site.
Site grading and erosion control.
Excavating the site including rock blasting and removal.
Installing parking areas.
Constructing the storm water detention pond.
Constructing highway access roadways and site roads.
Installing utilities (e.g., temporary and permanent power)
and storage tanks.
Installing fences for investment protection (not used to
implement the Physical Security Plan).
Installing construction buildings, offices (including
construction trailers), warehouses and guard houses.
In response to a request for additional information dated September
14, 2009, the Applicant clarified that the storage tanks would be used
strictly for construction purposes; the guardhouses are not part of the
physical security plan; and the construction buildings, offices, and
warehouses are not part of the Standard Practice Procedure Plan for the
Protection of Classified Matter.
This EA has been prepared pursuant to 10 CFR 51.21, which states,
``[a]ll licensing and regulatory actions subject to this subpart
require an environmental assessment * * *.'' The only two exceptions to
this rule are those actions requiring environmental impact statements,
and those that are categorically excluded or identified as otherwise
not requiring environmental review pursuant to Sec. 51.22. Exemptions
are not currently covered by any categorical exclusion, and, therefore,
an EA is required here.
Need for the Proposed Action
As indicated by the above list, the Applicant seeks permission to
engage in certain site preparation work before it is authorized to
conduct uranium enrichment operations. This action is needed to allow
the Applicant to complete certain on-site activities in parallel with
the licensing and hearing processes, so that it can begin construction
promptly upon issuance of the license. The NRC staff proposes to grant
the exemption request and allow the Applicant to begin site preparation
activities.
Alternatives to the Proposed Action
An alternative is to not grant the exemption and not allow the
Applicant to engage in any site preparation activities before an
operating license is issued. If the NRC does not grant the exemption,
the Applicant would need to wait until a decision is made on its
license application request to engage in the preconstruction
activities.
Environmental Impacts of the Proposed Action
The NRC staff reviewed the Applicant's exemption request in the
context of whether or not the requested activities fall within one of
the categories of site preparation activities considered not
construction under Sec. 51.4. The staff intends to exempt only those
activities that fall within this definition. Therefore, the impacts of
those activities are excluded from this EA. The impacts of site
preparation activities will be addressed in the
[[Page 12583]]
environmental impact statement being prepared in conjunction with the
NRC's review of the license application.
As discussed in Section 2 of the EA, the site preparation
activities will only be considered in the NRC's environmental review of
the subsequent major Federal action (i.e., issuance of a license) to
the extent necessary to establish an environmental baseline. Thus,
these preparatory activities will be considered in the environmental
impact statement (EIS) the NRC staff is preparing to support a
licensing decision on the proposed Eagle Rock Enrichment Facility.
Environmental Impacts of the No-Action Alternative
There are no environmental impacts of not granting the exemption.
Agencies and Persons Consulted
The NRC staff consulted with the Idaho State Historic Preservation
Office, the U.S. Fish and Wildlife Service, and the Idaho Department of
Environmental Quality regarding the site preparation activities
addressed in this EA.
III. Finding of No Significant Impact
The NRC staff has prepared this EA in support of the proposed
action. On the basis of this EA, the NRC finds that there are no
significant environmental impacts from the proposed action, because
none of the activities approved by the action are considered
``construction'' for the purposes of Part 51 environmental analyses,
and that preparation of an environmental impact statement is not
warranted. Accordingly, the NRC has determined that a Finding of No
Significant Impact is appropriate.
IV. Further Information
The Applicant's exemption request is available electronically at
the NRC's Electronic Reading Room at http://www.nrc.gov/reading-rm/adams.html. From this site, you can access the NRC's Agencywide
Documents Access and Management System (ADAMS), which provides text and
image files of NRC's public documents. The ADAMS accession number for
the June 17, 2009, exemption request is ML091770390, and the October
15, 2009, reply to NRC's request for additional information is
ML092920169. The ADAMS accession number for the NRC staff's September
14, 2009, request for additional information is ML092180375. The ADAMS
Accession number for the complete EA is ML093220528.
If you do not have access to ADAMS or if there are problems in
accessing the documents located in ADAMS, contact the NRC Public
Document Room (PDR) Reference staff at 1-800-397-4209, 301-415-4737 or
via e-mail to pdr.resource@nrc.gov.
These documents may also be viewed electronically on the public
computers located at the NRC's PDR, O1 F21, One White Flint North,
11555 Rockville Pike, Rockville, Maryland 20852. The PDR reproduction
contractor will copy documents for a fee.
Dated at Rockville, Maryland this 8th day of March 2010.
For the U.S. Nuclear Regulatory Commission.
Marissa G. Bailey,
Deputy Director, Special Projects and Technical, Support Directorate,
Division of Fuel Cycle Safety and Safeguards, Office of Nuclear
Material Safety and Safeguards.
[FR Doc. 2010-5677 Filed 3-15-10; 8:45 am]
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