Licenses, Certifications, and Approvals for Nuclear Power Plants; Supplemental Proposed Rule, 61330-61359 [06-8656]

Agencies

• NUCLEAR REGULATORY COMMISSION

[Federal Register Volume 71, Number 200 (Tuesday, October 17, 2006)]
[Proposed Rules]
[Pages 61330-61359]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-8656]



[[Page 61329]]

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Part IV





Nuclear Regulatory Commission





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10 CFR Parts 2, 50, 51 and 52



Licenses, Certifications, and Approvals for Nuclear Power Plants; 
Supplemental Proposed Rule

Federal Register / Vol. 71, No. 200 / Tuesday, October 17, 2006 / 
Proposed Rules

[[Page 61330]]


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NUCLEAR REGULATORY COMMISSION

10 CFR Parts 2, 50, 51 and 52

RIN 3150-AG24


Licenses, Certifications, and Approvals for Nuclear Power Plants; 
Supplemental Proposed Rule

AGENCY: Nuclear Regulatory Commission.

ACTION: Supplemental proposed rule.

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SUMMARY: The Nuclear Regulatory Commission (NRC) is proposing to 
supplement its proposed rule entitled ``Licenses, Certifications, and 
Approvals for Nuclear Power Plants,'' which was published on March 13, 
2006 (71 FR 12782). The NRC is proposing to supplement that proposed 
rule by amending the regulations applicable to limited work 
authorizations (LWA), which allow limited construction activities on 
nuclear power plants to commence before a construction permit or 
combined license is issued. This supplemental proposed rule would 
modify the scope of activities that are considered construction 
requiring a LWA and would also make changes to the review and approval 
process for LWA requests. The NRC is proposing these changes to enhance 
the efficiency of its licensing and approval process for new nuclear 
reactors.

DATES: Submit comments by November 16, 2006. Comments received after 
this date will be considered if it is practical to do so, but the 
Commission is able to ensure consideration only for comments received 
on or before this date.

ADDRESSES: You may submit comments by any one of the following methods. 
Please include the following number RIN 3150-AG24 in the subject line 
of your comments. Comments on rulemakings submitted in writing or in 
electronic form will be made available to the public in their entirety 
on the NRC rulemaking Web site. Personal information will not be 
removed from your comments.
    Mail comments to: Secretary, U.S. Nuclear Regulatory Commission, 
Washington, DC 20555-0001, Attn: Rulemakings and Adjudications Staff.
    E-mail comments to: SECY@nrc.gov. If you do not receive a reply e-
mail confirming that we have received your comments, contact us 
directly at (301) 415-1966. You may also submit comments via the NRC's 
rulemaking Web site at https://ruleforum.llnl.gov. Address questions 
about our rulemaking Web site to Carol Gallagher (301) 415-5905; e-mail 
cag@nrc.gov. Comments may also be submitted via the Federal eRulemaking 
portal https://www.regulations.gov.
    Hand deliver comments to: 11555 Rockville Pike, Rockville, Maryland 
20852, between 7:30 a.m. and 4:15 p.m. Federal workdays. (Telephone 
(301) 415-1966).
    Fax comments to: Secretary, U.S. Nuclear Regulatory Commission at 
(301) 415-1101.
    Publicly available documents related to this rulemaking may be 
examined and copied for a fee at the NRC's Public Document Room (PDR), 
Public File Area O1 F21, One White Flint North, 11555 Rockville Pike, 
Rockville, Maryland. Selected documents, including comments, can be 
viewed and downloaded electronically via the NRC rulemaking Web site at 
https://ruleforum.llnl.gov.
    Publicly available documents created or received at the NRC after 
November 1, 1999, are available electronically at the NRC's Electronic 
Reading Room at https://www.nrc.gov/NRC/ADAMS/. From this 
site, the public can gain entry into the NRC's Agencywide Document 
Access and Management System (ADAMS), which provides text and image 
files of NRC's public documents. If you do not have access to ADAMS or 
if there are problems in accessing the documents located in ADAMS, 
contact the NRC Public Document Room (PDR) Reference staff at 1-800-
397-4209, 301-415-4737 or by e-mail to pdr@nrc.gov.

FOR FURTHER INFORMATION CONTACT: Mr. 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. History of the Part 52 Rulemaking Proceeding
II. Discussion
    A. History of the NRC's Concept of Construction and the LWA
    B. NRC's Proposed Concept of Construction and the LWA (PRM-50-
82)
    C. NRC's Proposed Concept of Construction and the AEA
    D. Proposed Supplement Complies With NEPA
    1. NRC's Proposed Concept of Construction Is Consistent With the 
Legal Effect of NEPA
    2. NRC's Proposed Concept of the ``Major Federal Action'' Is 
Consistent With NEPA Law
    3. NRC's Phased Approval Approach Is not Illegal Segmentation 
Under NEPA
E. Inclusion of Additional Activities as ``Construction'' under 
Sec.  50.10(b)
F. Phased Application and Approval Process
G. EIS Prepared, but Facility Never Constructed
III. Section-by-Section Analysis
IV. Specific Request for Comments
V. Availability of Documents
VI. Plain Language
VII. Agreement State Compatibility
VIII. Voluntary Consensus Standards
IX. Environmental Impact--Categorical Exclusion
X. Paperwork Reduction Act Statement
XI. Regulatory Analysis
XII. Regulatory Flexibility Act Certification
XIII. Backfit Analysis

I. Background

A. History of the Part 52 Rulemaking Proceeding

    The NRC issued 10 CFR part 52 on April 18, 1989 (54 FR 15372), to 
reform its licensing process for future nuclear power plants. The rule 
added alternative licensing processes in 10 CFR part 52 for early site 
permits, 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 
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 comment 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 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 (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

[[Page 61331]]

(71 FR 12782). The public comment period on the March 2006 proposed 
rule ended on May 30, 2006.

II. Discussion

A. History of the NRC's Concept of Construction and the LWA

    Section 101 of the Atomic Energy Act of 1954, as amended (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 Commission. While construction 
of a nuclear power reactor is not mentioned in section 101, section 185 
of the AEA requires that the Commission 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 Commission. However, the term construction is not 
defined anywhere in the AEA or in the legislative history of the Act.
    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 turbo-generators 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 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 National Environmental 
Policy Act of 1969, as amended (NEPA), the Commission adopted a major 
amendment to the definition of construction in Sec.  50.10 (37 FR 5745; 
March 21, 1972). In that rulemaking, the Commission 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 such 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 nonnuclear 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)
    The Commission 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 National Environmental Policy Act of 1969, 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)

    Thus, the Commission's interpretation of its responsibilities under 
NEPA, not the AEA, was the driving factor leading to its adoption of 
Sec.  50.10(c).\1\
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    \1\ See The 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 (Jan. 12, 1977) 
(explaining that NEPA led the AEC to amend its regulations in 
several respects, including the changes to 50.10(c)).
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    Two years after the expansion of the Commission's permitting 
authority resulting from the promulgation of Sec.  50.10(c), the NRC 
promulgated Sec.  50.10(e) (39 FR 14506; April 24, 1974). This 
provision created the current LWA process, which was added to allow 
site preparation, excavation and certain other on-site activities to 
proceed before issuance of a construction permit. Prior to the 
promulgation 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. The 
provisions of Sec.  50.10(e) allowed the NRC to authorize the 
commencement of both safety-related (known as ``LWA-II'' activities) 
and non safety-related (known as ``LWA-I'' activities) on-site 
construction activities before issuance of a construction permit if the 
NRC had completed 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 environmental 
and, in the case of an LWA-II, safety-related findings.

B. NRC's Proposed Concept of Construction and the LWA (PRM-50-82)

    The NRC received several comments in response to its Part 52 
proposed rule revision published on March 13, 2006 (71 FR 12782), 
including comments submitted by the Nuclear Energy Institute (NEI) 
dated May 25, 2006.\2\

[[Page 61332]]

NEI's comments suggested modifications to the NRC's LWA process 
including: (1) That non-safety related ``LWA-I'' activities, currently 
reflected in Sec.  50.10(c) and Sec.  50.10(e)(1), be allowed to 
proceed without prior authorization from the NRC, and (2) that the 
approval process for safety-related ``LWA-II'' 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 AEA.
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    \2\ 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 12, 
782 (March 13, 2006) (RIN 3150-AG24) (May 25, 2006).
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    Further, 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 has determined that the changes suggested in the 
NEI comment could not be incorporated into the final Part 52 rule 
without re-noticing. Therefore, the Commission has decided that the NEI 
letter meets the sufficiency requirements described in 10 CFR 2.802(c) 
and is docketing the letter as a petition for rulemaking (PRM-50-82). 
Furthermore, the NRC has determined that it is appropriate to seek 
public comment on the action requested by petitioner within the context 
of this supplemental proposed rule, which has been developed in 
response to NEI's request, as allowed under 10 CFR 2.802(e).
    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. In 
order to achieve this goal, NEI states that non safety-related ``LWA-
I'' activities would need to be initiated up to two years before the 
activities currently defined as ``construction'' in Sec.  50.10(b). In 
NEI's view, the current LWA approval process would constrain the 
industry's ability to use modern construction practices and needlessly 
add eighteen (18) months to estimated construction schedules for new 
plants that did not reference an early site permit (ESP) with LWA 
authority.
    The NRC agrees, in part, with NEI's comments and is now issuing 
this supplement to the March 13, 2006 proposed rule.\3\ This 
supplemental proposed rule would narrow the scope of activities 
requiring permission from the NRC in the form of limited work 
authorizations (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 only be required 
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 
this redefinition of ``construction'' would result in fewer activities 
requiring NRC permission in the form of a LWA, it also redefines 
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 a LWA.
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    \3\ Industry stakeholders did not raise issues relating to 
perceived problems either with the LWA process or, more generally, 
with the definition of construction during the period leading to the 
March 2006 proposed rule and no such changes were suggested in the 
proposed rule. Therefore, the NRC is providing notice and an 
opportunity for public comment on the changes proposed in this 
supplement. The Commission may adopt this supplemental proposed rule 
either as part of the final rule promulgating the changes to Part 52 
(see 71 FR 12782; March 13, 2006), or in a separate final rule.
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    Further, this proposed rule would provide an optional, phased 
application and approval procedure for construction permit and combined 
license applicants to obtain limited work authorizations. Specifically, 
the proposed rule would provide 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 a limited 
environmental impact statement addressing those activities, but before 
completion of the comprehensive environmental impact statement 
addressing the underlying request for a construction permit or combined 
license. Finally, this proposed rule would specifically address the 
environmental review required in situations where the LWA activities 
are to be conducted at sites for which the Commission has previously 
prepared an environmental impact statement 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.

C. NRC's Proposed Concept of Construction and the AEA

    This change is fully consistent with the Commission's radiological 
health and safety and common defense and security responsibilities 
under the AEA.\4\ Specifically, the Commission 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. 
Further, as previously mentioned, the term ``construction'' is not 
defined in the AEA or in the Act's legislative history. Instead of 
expressly defining the term in the AEA, Congress entrusted the agency 
with the responsibility of determining what activities constitute 
construction.\5\ The Commission believes that its proposed definition 
of the term ``construction'' is reasonable.
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    \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.
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D. Proposed Supplement Complies With NEPA

1. NRC's Proposed Concept of Construction is Consistent with the Legal 
Effect of NEPA
    The proposed change in the definition of construction is also 
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 delegated 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

[[Page 61333]]

Commission'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.
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    \6\ See, e.g., Robertson v. Methow Valley Citizens Council, 490 
U.S. 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).
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2. NRC's Proposed Concept of the ``Major Federal Action'' is Consistent 
with NEPA Law
    Because the AEA does not authorize 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 Commission considers these activities 
``non-Federal action'' for the purposes of implementing its NEPA 
responsibilities. Generally, non-Federal actions are not subject to the 
requirements of NEPA.\7\
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    \7\ Save the Bay, Inc. v. U.S. Army Corps of Engineers, 610 F.2d 
322, 326 (5th Cir. 1980).
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    Further, the Commission believes that these non-Federal site 
preparation activities would not generally be ``federalized'' if the 
Commission were to ultimately grant a combined license or construction 
permit. The grant of a construction permit or combined license by the 
Commission is not a legal condition precedent to these non-Federal, 
site preparation activities. While the Commission 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\
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    \8\ See Landmark West! v. U.S. Postal Service, 840 F.Supp. 994, 
1006 (S.D.N.Y. 1993) (citing cases).
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    In addition, under the proposed definition of construction, the 
Commission does not believe that it has sufficient 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 Commission 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 Commission 
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, meteorology and 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 
Commission'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 would be considered in order to establish a baseline against 
which the incremental effect of the Commission's major Federal action 
(i.e. issuing a LWA, construction permit or combined license) would be 
measured. These incremental impacts may be additive or synergistic.
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 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\
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    \9\ Daniel R. Mandelker, NEPA Law and Litigation, 9-25 (2nd ed. 
2004).
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    Neither of these segmentation concerns are presented by the 
approach proposed here. First, under both LWA application options, 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 Commission'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\
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    \10\ See Tennessee Valley Authority (Clinch River Breeder 
Reactor Plant), 16 NRC 412, 424 (Aug. 17, 1982) (hereinafter Clinch 
River).
    \11\ Id.
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    These considerations are reflected in the provisions of the 
supplemental proposed rule. Specifically, Sec.  50.10(c)(6) of the 
proposed rule states that any activity undertaken pursuant to a 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 environmental impact statement 
associated with the underlying request will not consider the sunk costs 
associated with the LWA activities. In addition, Sec.  50.10(c)(3) 
would require an applicant requesting a LWA to submit a plan for 
redress of the site to be implemented in the event that the LWA holder 
is ultimately not issued a construction permit or combined license. 
This site redress plan must ``achieve an environmentally stable and 
aesthetically acceptable site suitable for whatever non-nuclear use may 
conform with local zoning laws'' in the event that the LWA holder is 
not ultimately issued a construction permit or combined license. The 
redress plan would achieve this objective by addressing site impacts 
resulting from LWA activities. Impacts associated with pre-LWA 
activities would not be addressed in the redress plan. Further,

[[Page 61334]]

Sec.  50.10(c)(7) would require that the site redress plan be 
implemented within a reasonable time and that the redress of the site 
occur within eighteen (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 utilized for a permissible, 
non-nuclear alternative use. In this way, the redress plan helps to 
preserve the Commission'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.

E. Inclusion of Additional Activities as ``Construction'' Under Sec.  
50.10(b)

    A significant change proposed in this supplemental proposed rule is 
the inclusion of activities--such as the driving of piles and 
excavation of foundations for safety-related structures--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 proposed rule 
suggesting that the driving of piles be expressly excluded from the 
definition of construction simply states that the ``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 not including the driving of piles, 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 (32 FR 11278).
---------------------------------------------------------------------------

    \12\ The proposed rule language was promulgated without 
modification in the final rule. 33 FR 2381.
---------------------------------------------------------------------------

    The NRC does not currently believe that the exclusion of a site 
preparation activity from the definition of construction should hinge 
on this factor. The Commission believes that the site preparation 
activities described in Sec.  50.10(b) of this supplement, including 
the driving of piles and excavation of foundations in certain 
situations, have a reasonable nexus to radiological health and safety, 
and/or common defense and security and, therefore, are properly 
considered ``construction'' as that term is used in Sec.  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.

F. Phased Application and Approval Process

    Another significant change suggested in this supplemental proposed 
rule is the modification of the procedure for obtaining LWA approval by 
implementing an optional phased application and approval process. 
Specifically, as proposed, Sec.  2.101(a)(9) would allow 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 proposed rule would allow the NRC to consider 
the environmental impacts attributable to the requested LWA activities 
separately, either as part of a comprehensive environmental impact 
statement (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 would be permitted to 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/approval process 
would add efficiencies to the licensing/construction process by 
preventing unnecessary delay in construction schedules, which would 
result if issuance of an LWA for safety-related activities were delayed 
until the final environmental impact statement and adjudicatory hearing 
on the entire underlying license application were complete. In 
addition, the proposed application/approval process would 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.

G. EIS Prepared, but Facility Never Constructed

    The supplemental proposed rule also specifically 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 proposed supplement would allow 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 proposed supplement would 
allow the NRC to incorporate the previous EIS by reference when 
preparing its draft EIS on the LWA activities. The draft EIS on the LWA 
request would be limited to the consideration of any significant new 
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 
would be limited to determining whether there is significant new 
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 significant new information indetermining whether an LWA 
should be issued as proposed by the Director of Nuclear Reactor 
Regulation.
    This provision is designed to gain efficiency by using existing 
environmental impact statements to evaluate the environmental impacts 
of

[[Page 61335]]

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 a 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 such differences will likely 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 and, therefore, should be addressed in the 
applicant's environmental report, analyzed by the staff in a supplement 
to the existing FEIS, and considered by the presiding officer.
    Further, for the reasons previously discussed in section D.3, the 
Commission does not believe that authorizing LWA activities before 
completion of the FEIS on the combined license or construction permit 
would have the effect of prejudging the license/permit, or foreclosing 
reasonable alternatives.

III. Section-by-Section Analysis

Part 2

Section 2.101 Filing of Application
    Section 2.101 would be revised to add a new paragraph (a)(9), which 
would state 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 
operating license application, the application must include the 
information required by Sec.  50.10(c).
    If the application is a phased LWA application, the first part must 
contain the information required by Sec.  50.10(c) 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 would 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 twelve (12) 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 that twelve (12) months after 
submission of part one of the application.
    An applicant for an early site permit may not submit its LWA 
application in advance of the underlying early site permit application, 
and therefore is not permitted to use the procedures of Subpart F.
Section 2.104 Notice of Hearing
    Paragraph (d)(1)(iii) of Sec.  2.104 would be modified to more 
clearly refer to the authority requested under Sec.  52.17(c) as the 
limited work authorization under Sec.  50.10.

Subpart F

    The title of Subpart F would be 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 would be revised to reflect 
the new set of procedures for phased LWA applications in proposed 
Sec. Sec.  2.641 through 2.649.
Section 2.601 Applicability of Other Sections
    Section 2.601 would be corrected to add references to subparts C, L 
and N of part 2, in order to make clear that these subparts (in 
addition to subparts A and G) apply to applications and proceedings 
under subpart F, except as specifically provided in subpart F.
Section 2.606 Partial Decision on Site Suitability Issues
    Paragraph (a) of Sec.  2.606, which provides that a LWA may not be 
issued without completion of the ``full review'' required by NEPA, 
would be revised to remove the reference to a LWA, inasmuch as LWAs 
would now be 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 shall 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 Director of 
NRR (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 would 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 what is 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 will publish a second 
notice of docketing in the Federal Register, in this case 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 Commission notes that nothing in Sec.  2.101(a)(9), or any part 
of subpart F, requires that the hearing on part one of the application 
be completed and an initial decision issued by the presiding

[[Page 61336]]

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 limited work 
authorization 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 period 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) of the proposed rule differs somewhat from Sec.  
2.604, in that the Commission proposes 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, but the petition need not address the interest and 
standing requirements in Sec.  2.309(d). The petition must be filed 
within the time period provided by the supplementary notice of hearing 
published in the Federal Register for part two of the application.
    As noted in the section-by-section analysis for Sec.  2.643, 
nothing in Sec.  2.101(a)(9) or subpart F 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 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 a 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 periods for 
the Commission to exercise its review and sua sponte authority are the 
same time periods provided for in part 2 with respect to a final 
decision on issuance of a construction permit or combined license.

Part 50

Section 50.10 License Required; Limited Work Authorization
    Paragraph (a). This paragraph, which is unchanged from the current 
rule, prohibits any person within the United States from transferring 
or receiving in interstate commerce, manufacturing, producing, 
transferring, acquiring, possessing, or using any production or 
utilization facility except as authorized by a license issued by the 
Commission, or as provided in Sec.  50.11.
    Paragraph (b). This paragraph, which is substantially modified from 
the current rule, prohibits any person from beginning the 
``construction'' of a production or utilization facility on a site on 
which the facility is to be operated until that person has been issued 
a construction permit, a combined license under part 52, or a limited 
work authorization under paragraph (c) of this section.
    The remainder of this paragraph is devoted to specifying what 
activities are, and are not, deemed to constitute ``construction'' for 
purposes of this paragraph's prohibition. Activities, such as site 
clearing, grading, site exploration, test boring, erection of temporary 
buildings and erection of permanent structures which are not required 
to be described in the site safety analysis report, preliminary safety 
analysis report, or final safety analysis report, would not be regarded 
as ``construction,'' and no NRC approval would be needed to conduct 
those activities. The only work that would be considered construction 
would be the excavation, subsurface preparation, and on-site, in-place 
fabrication, erection, integration or testing (including the 
installation of foundations) of any structure, system or component 
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. The term, ``on-site, in place, 
fabrication, erection, integration or testing'' is intended to describe 
the historical process of constructing a nuclear power plant in its 
final, on-site location, where components or modules are integrated 
into the final, in-plant location and elevation. The definition is 
intended to exclude persons from having to obtain a LWA, construction 
permit, or combined license, in order to fabricate, assemble and test 
components and modules in a shop building, warehouse, or laydown area 
located on-site.
    Thus, the proposed redefinition of construction for the most part 
returns to the pre-1972 definition of ``construction'' in Sec.  
50.10(b), and removes the need for NRC approval to conduct the 
activities currently described in Sec.  50.10(e)(1), except in two 
important respects. First, whereas existing Sec.  50.10(b) allows the 
driving of piles for the facility, proposed Sec.  50.10(b) would not 
permit driving of piles for any structure, system or component required 
to be described in an SSAR, PSAR, or FSAR unless NRC permission is 
obtained in the form of a LWA, construction permit, or combined 
license. Second, existing Sec.  50.10(e)(1) allows a person, with NRC 
permission in the form of a LWA, to excavate and install the structural 
foundations for any structure, systems and components ``which do not 
prevent or mitigate the consequences of postulated accidents that could 
cause undue risk to the health and safety of the public.'' The proposed 
redefinition would not remove the need for NRC approval, but 
substitutes a slightly different scope of structures, systems and 
components whose excavation and foundation installation may be allowed 
under an LWA, viz., those which are required to be described in the 
FSAR.
    ``Excavation,'' as used in paragraph (b), excludes initial site 
grading to attain the final ground elevation, and erosion control 
measures to preclude run-off, at the location where further excavation 
will be required for a structure, systems or component required by the 
Commission's regulations to be described in the FSAR. By contrast, the 
removal of any soil, rock, gravel or other material below the final 
ground

[[Page 61337]]

elevation, in preparation for the placement of the foundation and 
associated retaining walls, is excavation that may not be performed 
without an LWA, construction permit, or combined license under part 52. 
The ``driving of piles'' not related to ensuring the structural 
stability or integrity of any structure, systems or component required 
by the Commission's regulations to be described in the FSAR does not 
fall within the definition of construction in this paragraph. 
Therefore, 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 a LWA, 
construction permit, or combined license. ``Installation of the 
foundation,'' means soil compaction; the installation of drainage 
systems and geofabric; the placement of concrete (e.g., ``mudmats'') or 
other materials which will not be removed prior to placement of the 
foundation of a structure; the placement and compaction of a subbase; 
the installation of reinforcing bars to be incorporated into the 
foundation of the structure; the erection of concrete forms for the 
foundations that will remain in-place permanently (even if non-
structural); and placement of concrete or other material constituting 
the foundation of any structure, systems or component required by the 
Commission's regulations to be described in the FSAR. Foundation 
installation activities will require a LWA, construction permit, or 
combined license.
    Construction is deemed to also include the ``on-site, in-place,'' 
fabrication, erection, integration or testing activities for any 
structure, system or component required by the Commission's regulations 
to be described in the FSAR. The use of the term, ``on-site, in 
place,'' is intended to allow such structures, systems and components, 
including any ``modules'' and subassemblies, to be fabricated, 
assembled and tested in a shop building, warehouse, or laydown area 
located on-site without a LWA, construction permit, or combined 
license. However, the installation or integration of that structure, 
system, or component into its final location in the reactor would 
require either a construction permit or combined license. The 
Commission notes that this paragraph does not apply to manufacturing, 
inasmuch as ``manufacturing'' is not ``construction.'' Moreover, 
paragraph (b) refers to construction ``on a site on which the facility 
is to be operated;'' which is not within the scope of a ``manufacturing 
license'' under subpart F of part 52. Accordingly, manufacturing is not 
covered by paragraph (b).
    Paragraph (c). This paragraph, which is substantially modified from 
the current rule, addresses the need for, nature and contents of an 
application for a LWA. Paragraph (c)(1) allows the Commission to issue 
an LWA in advance of a construction permit or combined license, 
authorizing the holder to perform certain delineated construction 
requirements.
    Paragraph (c)(2) provides that an LWA application may be submitted 
as:

--Part of a complete application for a construction permit or combined 
license under Sec.  2.101(a)(1) through (4).
--Part one of a phased application under Sec.  2.101(a)(9).
--Part of a complete application for an early site permit under Sec.  
2.101(a)(1) through (4).
--An amendment to an already-issued early site permit

    Paragraph (c)(3) establishes the requirements for the content of an 
LWA application. The application must include a safety analysis report, 
an environmental report, and a redress plan. The safety analysis 
report, which may be a stand-alone document or incorporated into the 
construction permit or combined license application's preliminary or 
final safety analysis report, as applicable, must describe the LWA 
activities that the applicant seeks to perform, provide the final 
design for the structures to be constructed under the LWA and a safety 
analysis for those portions of the structure, and provide a safety 
analysis of the design demonstrating that the activities will be 
conducted in accordance with applicable Commission safety requirements.
    The environmental report must meet the requirements of 10 CFR 
51.49, which is discussed in more detail in the section by section 
analysis for that provision.
    The redress plan must describe the activities that would be 
implemented by the LWA holder, should construction be terminated by the 
holder, the LWA is revoked by the NRC, or upon effectiveness of the 
Commission's final decision denying the associated operating license 
application or the underlying combined license application, as 
applicable. The primary purpose of the redress plan is to return the 
site to an environmentally stable and aesthetically acceptable 
condition that would allow the site to be utilized for alternative, 
non-nuclear uses that conform with local zoning laws. This will be 
accomplished through redress of site impacts resulting from LWA 
activities performed at the site. Redress of site impacts resulting 
from pre-LWA activities will not be required under the redress plan. In 
addition, 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.
    Paragraph (d). This paragraph, which is substantially modified from 
the current rule, generally addresses the requirements associated with 
issuance of a LWA. Paragraph (d)(1) sets forth the requirements for the 
appropriate Director to issue an LWA under this section. The Director 
may issue an LWA only after making the appropriate findings on: (i) 
Necessary technical qualifications, and the matter of foreign ownership 
or control relevant to the information required by Sec.  50.33(a) 
through (f), as mandated by sections 103.d. and 182.a. of the AEA; (ii) 
making the necessary findings on public health and safety and common 
defense and security with respect to the activities to be carried out 
under the LWA; (iii) NRC staff issuance of a final EIS on the LWA in 
accordance with the applicable requirements of part 51; and (iv) the 
presiding officer finding on the environmental issues relevant to the 
LWA in accordance with the applicable requirements of part 51, and a 
finding on the safety issues relevant to the LWA.
    Paragraph (d)(2) requires that the LWA specify the activities that 
the holder is authorized to perform, consistent with the LWA 
application and as modified based upon the NRC's review. In addition, 
each LWA will be issued with a condition requiring implementation of 
the redress plan if the LWA holder terminates construction, the LWA is 
revoked, or upon effectiveness of the Commission's final decision 
denying the associated operating license application or the underlying 
combined license application, as applicable. As discussed in the 
analysis of paragraph (e), this condition survives the merging of the 
LWA into the underlying construction permit, early site permit, or 
combined license.
    Paragraph (e). This paragraph, which is substantially modified from 
the current rule, addresses the legal effect of an issued LWA. 
Paragraph (e)(1)

[[Page 61338]]

provides that any activities undertaken under a limited work 
authorization shall be entirely at the risk of the applicant and, with 
exception of the matters determined under paragraph (c)(4)(ii) and 
(iii), the issuance of the limited work authorization shall have no 
bearing on the issuance of a construction permit or combined license 
with respect to the requirements of the Act, and rules, regulations, or 
orders promulgated pursuant thereto. Thus, this paragraph states that 
the environmental impact statement for a construction permit or 
combined license application for which a limited work authorization was 
previously issued will not address, and the presiding officer will not 
consider, the sunk costs of the holder of limited work authorization in 
determining the proposed action (i.e., issuance of the construction 
permit or combined license).
    Paragraph (f). This new paragraph would require the LWA holder to 
begin implementation of the redress plan in a reasonable time, and 
complete the redress no later than eighteen (18) months after 
termination of construction by the holder, revocation of the LWA, or 
upon effectiveness of the Commission's final decision denying the 
associated operating license application or the underlying combined 
license application, as applicable.

Part 51

Section 51.4 Definitions
    Section 51.4 would be revised by adding a new definition of 
``construction,'' which would make applicable throughout part 51 the 
definition of construction in proposed Sec.  50.10(b). This would have 
the effect of excluding from an EIS for any early site permit, 
construction permit, combined license, or LWA issued under Sec.  
50.10(c), any discussion, evaluation or consideration of the 
environmental impacts or benefits associated with non-construction 
activities as effectively defined in Sec.  50.10(b). This would also 
remove the need for the NRC decision maker, including a presiding 
officer, to make a NEPA finding with respect to the environmental 
impacts or benefits associated with those non-construction activities.
Section 51.17 Information collection requirements; OMB approval
    Paragraph (b) of Sec.  51.17 of the March 2006 proposed rule w