Federal Register / Vol. 74, No. 58 / Friday, March 27, 2009 / Notices 13483 

Commission’s regulations. Therefore, 

the exemption is authorized by law. 

No Undue Risk to Public Health and 

Safety 

One of the underlying purposes of 10 

CFR Part 50, Appendix R Section III.G 

is to protect safe shutdown capability. 

This is done by ensuring that one train 

of systems necessary to achieve and 

maintain hot shutdown conditions from 

either the control room or emergency 

control station(s) is free of fire damage. 

III.G.2 provides the following means to 

ensure that a redundant train of safe 

shutdown equipment is free of fire 

damage, where redundant trains are 

located in the same fire area: 

a. Separation of cables and equipment 

by a fire barrier having a 3-hour rating, 

b. Separation of cables and equipment 

by a horizontal distance of more than 20 

feet with no intervening combustibles or 

fire hazards and with fire detectors and 

an automatic fire suppression system in 

the fire area, or 

c. Enclosure of cables and equipment 

in a fire barrier having a 1-hour rating 

and with fire detectors and an automatic 

fire suppression system in the fire area. 

Entergy has indicated that the cable 

trays will be separated by a minimum 

distance of 17 feet–7.5 inches for a 

horizontal distance of approximately 10 

feet and that the remaining length of 

cable trays will be separated by more 

than 17 feet–7.5 inches. Entergy has also 

indicated that transient combustibles 

and hot work controls have been 

enhanced since the exemption was 

originally granted. This was 

accomplished by designating Fire Zone 

RB–3 as a ‘‘Level 2’’ combustible control 

area, which limits combustibles to 

moderate quantities and hot work 

requires prior review and approval of a 

fire protection engineer. 

Additionally, Entergy has stated that 

a pre-action automatic sprinkler system 

is provided beneath the lowest level of 

cable trays and above the top level of 

cable trays in Fire Zone RB–3 and that 

manual suppression equipment is 

provided throughout Fire Zone RB–3 in 

the form of accessible fire hose stations 

and portable fire extinguishers. A fire 

detection system is provided in the form 

of Ionization-type smoke detectors. 

According to Entergy, the fire 

protection systems are functionally 

unchanged from what was previously 

included in the December 1, 1986, 

evaluation. The licensee has indicated 

that 1-hour 3M Interam fire barriers 

were installed to protect certain 

raceways in the northwest corner of 

elevation 252 feet however; no credit for 

the barriers has been requested as part 

of this exemption. 

Based on the above, the exemption to 

allow the reduced minimum separation 

distance of 17 feet–7.5 inches in lieu of 

the 20 feet dimension specified in 

III.G.2 a, b, and c, does not increase the 

probability of postulated accidents or 

undue risk. Based on the combination of 

a lack of combustible fuel loading and 

ignition sources, room configuration 

and the separation distance of 17 feet– 

7.5 inches, the overall level of 

protection and defense in depth has 

been shown to meet or exceed the intent 

of the requirements included in III.G.2 

and equivalent with regard to safe 

shutdown capability following a fire. 

Therefore, there is no additional risk to 

public health and safety. 

Consistent With Common Defense and 

Security 

The proposed exemption would 

permit a reduced minimum separation 

distance between cable trays in a select 

area in lieu of meeting the separation 

requirements specified in III.G.2. This 

change has no relation to security 

issues. Therefore, the common defense 

and security is not impacted by this 

exemption. 

Special Circumstances 

Special circumstances, in accordance 

with 10 CFR 50.12(a)(2)(ii), are present 

whenever application of the regulation 

in the particular circumstances is not 

necessary to achieve the underlying 

purpose of the rule. Part of the 

underlying purpose of 10 CFR Part 50, 

Appendix R Section III.G is to assure 

safe shutdown capability. Entergy states 

that the active and passive fire 

protection features that were included 

in the original exemption remain 

functionally unchanged. This review 

determined that the reduction in 

minimum separation distance does not 

adversely affect the level of safety at the 

plant given the physical configuration of 

the cable trays, existing suppression and 

detection systems and the lack of 

combustible fuel loading in the area. 

The combination of these safeguards is 

sufficient to maintain safe shutdown 

capability in the event of a fire even at 

the reduced separation distance of 17 

feet–7.5 inches. Since the underlying 

purpose of 10 CFR Part 50, Appendix R 

Section III.G to protect safe shutdown 

capability is achieved, the special 

circumstances required by 10 CFR 

50.12(a)(2)(ii) for the granting of an 

exemption from 10 CFR Part 50, 

Appendix R Section III.G.2 exist. 

4.0 Conclusion 

Accordingly, the Commission has 

determined that special circumstances 

are present and that, pursuant to 10 CFR 

50.12(a), the exemption is authorized by 

law, will not present an undue risk to 

the public health and safety, and is 

consistent with the common defense 

and security levels intended by the rule 

for Nuclear Power Plants. Therefore, the 

Commission hereby grants Entergy an 

exemption from the requirements of 

III.G.2 b of 10 CFR Part 50, Appendix R, 

which is required by 10 CFR 50.48(b) for 

plants licensed to operate before January 

1, 1979, to VY. 

Pursuant to 10 CFR 51.32, the 

Commission has determined that the 

granting of this exemption will not have 

a significant effect on the quality of the 

human environment (74 FR 11612). 

This exemption is effective upon 

issuance. 

Dated at Rockville, Maryland, this 19th day 

of March 2009. 

For the Nuclear Regulatory Commission. 

Robert A. Nelson, 

Acting Director, Division of Operating Reactor 

Licensing, Office of Nuclear Reactor 

Regulation. 

[FR Doc. E9–6845 Filed 3–26–09; 8:45 am] 

BILLING CODE 7590–01–P 

NUCLEAR REGULATORY 

COMMISSION 

[NRC–2009–0138] 

Proposed Generic Communication; 

Pre-Licensing Construction Activities 

at Proposed Uranium Recovery 

Facilities 

AGENCY: Nuclear Regulatory 

Commission. 

ACTION: Notice of opportunity for public 

comment. 

SUMMARY: The U.S. Nuclear Regulatory 

Commission (NRC) is proposing to issue 

a regulatory issue summary (RIS) to 

present its interpretation of the 

regulations governing the 

commencement of construction found 

in 10 CFR 40.32(e). This Federal 

Register notice is available through the 

NRC’s Agencywide Documents Access 

and Management System (ADAMS) 

under accession number ML083470668. 

DATES: Comment period expires April 

27, 2009. Comments submitted after this 

date will be considered if it is practical 

to do so, but assurance of consideration 

cannot be given except for comments 

received on or before this date. 

ADDRESSES: Submit written 

comments to the Chief, Uranium 

Recovery Licensing Branch, Division of 

Waste Management and Environmental 

Protection, Office of Federal and State 

Materials and Environmental 

Management Programs, U.S. Nuclear 

mstockstill on PROD1PC66 with NOTICES

13484 Federal Register / Vol. 74, No. 58 / Friday, March 27, 2009 / Notices 

Regulatory Commission, Mail Stop T– 

8F5, Washington, DC 20555–0001, and 

cite the publication date and page 

number of this Federal Register notice. 

Written comments may also be 

delivered to NRC Headquarters, 11545 

Rockville Pike (Room T–8F5), Rockville, 

Maryland, between 7:30 a.m. and 4:15 

p.m. on Federal workdays. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Stephen J. Cohen at 301–415–7182 or by 

e-mail at stephen.cohen@nrc.gov. 

Draft Regulatory Issue Summary 2009– 

XX, ‘‘Pre-Licensing Construction 

Activities at Proposed Uranium 

Recovery Facilities’’ 

Addressees 

All holders of operating licenses for 

uranium recovery facilities and all 

companies that have submitted 

applications to construct new uranium 

recovery facilities of all types 

(conventional mills, heap leach, and in 

situ recovery (ISR) facilities) or letters of 

intent to submit such applications. 

Intent 

The U.S. Nuclear Regulatory 

Commission (NRC) is issuing this 

regulatory issue summary (RIS) to 

inform addressees of the NRC’s policy 

regarding pre-licensing construction 

activities at proposed uranium recovery 

facilities. The NRC is issuing this RIS in 

response to industry inquiries regarding 

the activities that applicants may 

undertake prior to receiving a license. 

Background 

In relation to the applications for new 

uranium recovery facilities currently 

under review and those applications 

expected over the next several years, the 

NRC has been queried by the uranium 

recovery industry about those 

construction activities that would be 

permissible at proposed uranium 

recovery facilities before a license is 

granted. The industry has requested 

information on such pre-licensing 

construction activities, including the 

potential use of limited work 

authorizations (LWAs) as provided in 

the reactor program, in the interest of 

minimizing the lead time from receipt of 

a license to the initiation of uranium 

recovery operations. 

Summary of Issue 

The NRC’s regulations in 10 CFR 

40.32(e) state that ‘‘commencement of 

construction’’ of a uranium recovery 

facility prior to issuance of a license is 

grounds for license denial. The term 

‘‘commencement of construction’’ 

means ‘‘any clearing of land, excavation, 

or other substantial action that would 

adversely affect the environment of a 

site.’’ The term does not mean ‘‘site 

exploration, roads necessary for site 

exploration, borings to determine 

foundation conditions, or other 

preconstruction monitoring or testing to 

establish background information 

related to the suitability of the site or 

the protection of environmental values.’’ 

Such activities may thus be conducted 

before a license is granted. 

In a Staff Requirements Memorandum 

(SRM)-M081211, the Commission 

directed the staff to budget resources to 

develop a proposed rulemaking to revise 

10 CFR 40.32(e) to determine whether a 

limited work authorization provision is 

appropriated for in-situ uranium 

facilities. Information gathered through 

the process described in this RIS will be 

used to support development of such a 

proposed rulemaking. 

ISR Industry representatives, through 

their legal counsel, presented their 

opinions to staff regarding the 

applicability of 10 CFR 40.32(e) to ISR 

facilities during a meeting on November 

18, 2008. Industry’s position is that 10 

CFR 40.32(e) is not applicable to ISR 

facilities, based on the rulemaking 

history of this regulation as reflected in 

the 1980 Federal Register notice 

publishing the final rule. In a November 

18, 2008 White Paper, the ISR industry 

argues as follows: 

This 1980 final rule promulgated and 

finalized a number of UMTRCA-specific 

regulations, including what the Commission 

referred to as ‘‘siting and design criteria’’ for 

newly proposed conventional uranium 

milling facilities (October 3, 1980; 45 FR 

65521). One of these regulations was a newly 

proposed 10 CFR 40.32(e) that dealt directly 

with the extent to which a proposed 

conventional uranium mill project site could 

be developed and constructed pursuant to 

these ‘‘siting and design criteria’’ prior to the 

issuance of a uranium milling license. This 

new 10 CFR 40.32(e) imposed a requirement 

on the Director of NRC’s then-named Office 

of Nuclear Material Safety and Safeguards 

(NMSS) (now Office of Federal and State 

Materials and Environmental Management 

Programs) to make ‘‘a positive finding on an 

applicant’s proposed plans as meeting the 

requirements and objectives in Appendix A 

prior to commencement of construction of a 

mill which produces byproduct material.’’ 

Industry further stated the following: 

Based on this requirement, the 

Commission concluded in the regulation that 

‘‘[c]ommencement of construction prior to 

this conclusion is grounds for denial of a 

license to possess and use source and 

byproduct material in the plant or facility.’’ 

(10 CFR 40.32(e)). Therefore, ‘‘the denial of 

applications for licenses where construction 

is started before the appropriate 

environmental appraisals are completed and 

documented’’ is required. 

However, it is crystal-clear from 

NRC’s accompanying explanatory 

language that this requirement is to be 

imposed only on a conventional ‘‘mill 

which produces byproduct material’’ as 

tailings, where it states: ‘‘Construction 

activities are likely to result in 

significant and long lasting 

environmental impacts, the propriety of 

which cannot be ascertained until these 

environmental appraisals are completed 

and documented.’’ 

In addition, to support its claim that 

10 CFR 40.32(e) applies only to 

conventional mills, the ISR industry 

paper states: 

Given that each mill tailings pile 

constitutes a low-level waste burial site 

containing long lived radioactive materials, 

* * * prudence requires that specific 

methods of tailings disposal, mill 

decontamination, site reclamation, surety 

arrangements, and arrangements to allow for 

transfer of site and tailings ownership be 

worked out and approved before a license is 

granted. 

(October 3, 1980; 45 FR 65521). 

According to industry, ISR applicants, 

therefore, should be allowed to build 

out most of the facilities in three tiers. 

Tier 1 includes activities over which 

NRC would have no jurisdiction, such 

as: 

• Laying foundations and 

construction of all support structures; 

• Laying of foundations for 

processing facilities; 

• Construction of ancillary facilities 

(i.e., roads, parking lots, access controls, 

power lines); 

• Installation of water and sanitary 

systems; 

• Drilling of disposal wells. 

Tier 2 activities would include those 

requiring NRC approval, but not a 

license, such as the following: 

• Construction of processing 

facilities; 

• Drilling of injection and production 

wells; 

• Installation of wellfield pipelines. 

Tier 3 activities would not occur until 

a license is issued and would include 

construction of the evaporation ponds 

and engaging in uranium recovery 

operations. 

NRC staff does not agree with 

industry’s interpretation of 10 CFR 

40.32(e). This regulation uses the terms 

‘‘uranium milling’’ and ‘‘byproduct 

material,’’ each of which is specifically 

defined in 10 CFR 40.4. The term 

‘‘uranium milling’’ means ‘‘any activity 

that results in the production of 

byproduct material as defined in this 

part.’’ The term ‘‘byproduct material’’ 

means ‘‘the tailings or wastes produced 

by the extraction or concentration of 

uranium or thorium from any ore 

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Federal Register / Vol. 74, No. 58 / Friday, March 27, 2009 / Notices 13485 

processed primarily for its source 

material content, including discrete 

surface wastes resulting from uranium 

solution extraction processes.’’ These 

definitions were added to 10 CFR Part 

40 in a 1979 final rulemaking that the 

ISR industry paper does not discuss. 

The NRC’s regulations in 10 CFR Part 

50 (Domestic Licensing of Production 

and Utilization Facilities) include an 

LWA process that allows the NRC to 

approve the conduct of certain 

construction activities in advance of the 

issuance of a construction permit or 

combined license. However, there are 

no similar provisions in 10 CFR Part 40 

for the use of LWAs in the licensing of 

uranium recovery facilities. Therefore, if 

an applicant wishes to perform prelicensing construction activities apart 

from those permitted under 10 CFR 

40.32(e), an exemption request must be 

submitted for the staff’s review. The 

exemption request must specify the 

particular activity, the purpose and 

need for the activity, the duration of the 

activity, and the potential impacts to 

human health and the environment. The 

request should include drawings that 

provide construction details and the 

location of the proposed activity. 

Depending on the specific activities 

included in the exemption request, the 

staff’s review may include an 

environmental assessment pursuant to 

the requirements of 10 CFR Part 51 

(Environmental Protection Regulations 

for Domestic Licensing and Related 

Regulatory Functions), consistent with 

the guidance in NUREG–1748 

(Environmental Review Guidance for 

Licensing Actions Associated with 

NMSS Programs). Exemption requests 

will be reviewed on a case-by-case basis 

and the granting of any exemptions does 

not ensure subsequent approval of a 

license. As such, any construction 

activities performed by the applicant 

under an exemption and prior to the 

issuance of a license are performed at 

the applicant’s risk. 

Voluntary Response Requested 

All addressees and the public are 

requested to voluntarily submit 

comments regarding the pre-licensing 

policy presented in this RIS. To be of 

use to the NRC, responses should be 

submitted within 30 days of the date of 

this summary. 

Congressional Review Act 

This RIS is not a rule as designated in 

the Congressional Review Act (5 U.S.C. 

801–886) and, therefore, is not subject to 

the Act. 

Paperwork Reduction Act Statement 

This draft RIS does not contain new 

or amended information collection 

requirements subject to the Paperwork 

Reduction Act of 1995 (44 U.S.C. 3501 

et seq.). Existing requirements were 

approved by the Office of Management 

and Budget, approval numbers 3150– 

0020 and 3150–0021. 

Public Protection Notification 

The NRC may not conduct or sponsor, 

and a person is not required to respond 

to, a request for information or an 

information collection unless the 

requesting document displays a 

currently valid OMB clearance number. 

Contact 

This RIS requires no specific action or 

written response. If you have any 

questions about this summary, please 

contact the technical contact listed 

below. 

Technical Contact: Stephen J. Cohen, 

DWMEP/URLB, (301) 415–7182, e-mail: 

stephen.cohen@nrc.gov. 

Note: The NRC’s generic communications 

may be found on the NRC public Web site, 

http://www.nrc.gov, under Electronic 

Reading Room/Document Collections. 

End of Draft Regulatory Issue Summary 

Documents may be examined, and/or 

copied for a fee, at the NRC’s Public 

Document Room at One White Flint 

North, 11555 Rockville Pike (first floor), 

Rockville, Maryland. Publicly available 

records will be accessible electronically 

from the Agencywide Documents 

Access and Management System 

(ADAMS) Public Electronic Reading 

Room on the Internet at the NRC Web 

site, http://www.nrc.gov/NRC/ADAMS/ 

index.html. If you do not have access to 

ADAMS or if you have problems in 

accessing the documents in ADAMS, 

contact the NRC Public Document Room 

(PDR) reference staff at 1–800–397–4209 

or 301–415–4737 or by e-mail to 

pdr@nrc.gov. 

Dated at Rockville, Maryland, this 20th day 

of March 2009. 

For the Nuclear Regulatory Commission. 

Keith I. McConnell, Deputy Director, 

Decommissioning and Uranium Recovery 

Licensing Directorate, Division of Waste 

Management, and Environmental Protection, 

Office of Federal and State Materials, and 

Environmental Management Programs. 

[FR Doc. E9–6844 Filed 3–26–09; 8:45 am] 

BILLING CODE 7590–01–P 

OVERSEAS PRIVATE INVESTMENT 

CORPORATION 

Submission for OMB Review 

AGENCY: Overseas Private Investment 

Corporation (OPIC). 

ACTION: Request for comments. 

SUMMARY: Under the provision of the 

Paperwork Reduction Act (44 U.S.C. 

Chapter 35), agencies are required to 

publish a Notice in the Federal Register 

notifying the public, that the Agency is 

revising an information collection 

request for OMB review, approval, and 

request public review and comment on 

the submission. Comments are being 

solicited on the need for the 

information; the accuracy of the 

Agency’s burden estimate; the quality, 

practical utility and clarity of the 

information to be collected; and ways to 

minimize the reporting burden, 

including automated collection 

techniques by using other forms of 

technology. The proposed form under 

review is summarized below. 

DATES: Comments must be received 

within 60 calendar days of publication 

of this notice. 

ADDRESSES: Copies of the subject form 

and the request for review prepared for 

submission to OMB may be obtained 

from the Agency submitting officer. 

Comments on the form should be 

submitted to the Agency Submitting 

Officer. 

FOR FURTHER INFORMATION CONTACT: 

OPIC Agency Submitting Officer: Essie 

S. Bryant, Records Management Officer, 

Overseas Private Investment 

Corporation, 1100 New York Avenue, 

NW., Washington, DC 20527; 202–336– 

8563. 

OMB Contact: Office of Information 

and Regulatory Affairs, U.S. Office of 

Information and Regulatory Affairs, 

Office of Management and Budget, 

Attention: Ms. Wendy Liberante, 725 

17th Street, Room 10102, NW., 

Washington, DC 20503; (202) 395–3647. 

Summary Form Under Review: 

Type of Request: Reinstatement, with 

changes, of a previously approved 

collection for which approval is 

expiring. 

Title: Sponsor Disclosure Report. 

Form Number: OPIC–129. 

Frequency of Use: Once per major 

sponsor, per project. 

Type of Respondents: Business or 

other institutions. 

Standard Industrial Classification 

Codes: All. 

Description of Affected Public: U.S. 

Companies sponsoring projects 

overseas. 

mstockstill on PROD1PC66 with NOTICES