[Federal Register Volume 73, Number 21 (Thursday, January 31, 2008)]
[Proposed Rules]
[Pages 5762-5767]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-1751]


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Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

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Federal Register / Vol. 73, No. 21 / Thursday, January 31, 2008 / 
Proposed Rules

[[Page 5762]]



NUCLEAR REGULATORY COMMISSION

10 CFR Part 51

[Docket No. PRM-51-9]


State of Nevada; Denial of Petition for Rulemaking

AGENCY: Nuclear Regulatory Commission.

ACTION: Petition for rulemaking: denial.

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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC or Commission) is 
denying a petition for rulemaking submitted by the State of Nevada 
(PRM-51-9). The petition requests that NRC modify its regulation 
setting criteria for adoption of an environmental impact statement 
prepared by the Secretary of the Department of Energy in proceedings 
for issuance of a construction authorization and materials license with 
respect to a geologic repository. The petitioner asserts that the 
current regulation must be ``corrected'' because it is at odds with a 
recent court of appeals decision. Further, petitioner asserts that 
certain litigation procedures that will be used in the proceedings to 
consider the adoption question violate the National Environmental 
Policy Act of 1969, as amended (NEPA). NRC is denying the petition 
because the court found no reason for NRC to correct its adoption 
criteria and because the petition does not demonstrate that NRC's 
litigation procedures violate NEPA. Commissioner Gregory B. Jaczko's 
vote on this denial is included in Appendix I to this notice.

ADDRESSES: Publicly available documents related to this petition, 
including the petition for rulemaking, the comments received, and NRC's 
letter of denial to the petitioner may be viewed electronically on 
public computers in NRC's Public Document Room (PDR), 01F21, One White 
Flint North, 11555 Rockville Pike, Rockville, Maryland. The PDR 
reproduction contractor will copy documents for a fee.
    Publicly available documents created or received at NRC after 
November 1, 1999, are also available electronically at the NRC's 
Electronic Reading Room at http://www.nrc.gov/reading-rm/adams.html. 
From this site, the public can gain entry into the NRC's Agencywide 
Documents 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 PDR reference staff at (800) 387-4209, (301) 415-
4737 or by e-mail to <a href="/cdn-cgi/l/email-protection#d1a1b5a391bfa3b2ffb6bea7"><span class="__cf_email__" data-cfemail="22524650624c50410c454d54">[email protected]</span></a>.

FOR FURTHER INFORMATION CONTACT: Jerry Bonanno, Office of the General 
Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, 
telephone (301) 415-1328 or Toll Free: 1-800-368-5642, e-mail: 
<a href="/cdn-cgi/l/email-protection#6c06140e592c021e0f420b031a"><span class="__cf_email__" data-cfemail="345e4c5601745a46571a535b42">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: 

Introduction

    On April 8, 2005, the State of Nevada (petitioner or the State) 
submitted a ``Petition by the State of Nevada to Amend 10 CFR 51.109'' 
(petition), which was docketed as a petition for rulemaking under 10 
CFR 2.802 of the Commission's regulations (PRM-51-9). The petition was 
noticed on August 12, 2005 (70 FR 47148) with a public comment period 
that closed on October 26, 2005. Three comment letters were received. 
The petition requests amendments to the Commission's regulation at 10 
CFR 51.109 governing NRC's adoption of the Department of Energy's (DOE) 
final environmental impact statement (FEIS), and any supplements 
thereto, which accompanied the Secretary of Energy's (the Secretary) 
recommendation to the President that the Yucca Mountain, Nevada (YM) 
site be approved for the development of a geologic repository. 
Petitioner believes that the current regulation is contrary to the 
NEPA, the Nuclear Waste Policy Act of 1982, as amended (NWPA), and the 
decision of the U.S. Court of Appeals for the District of Columbia 
Circuit in Nuclear Energy Institute, Inc. v. Environmental Protection 
Agency, 373 F.3d 1251 (D.C. Cir. 2004) (NEI).

Background

A. Statutory and Regulatory Background of Sec.  51.109

    Section 114(f)(4) of the NWPA provides that ``[a]ny [EIS] prepared 
in connection with a repository proposed to be constructed by the 
Secretary under this subtitle shall, to the extent practicable, be 
adopted by the Commission in connection with the issuance by the 
Commission of a construction authorization and license for such 
repository'' (emphasis added). The statute further provides that ``[t]o 
the extent such statement is adopted by the Commission, such adoption 
shall be deemed to also satisfy the responsibilities of the Commission 
under the [NEPA] and no further consideration shall be required, except 
that nothing in this subsection shall affect any independent 
responsibilities of the Commission to protect public health under the 
Atomic Energy Act of 1954 (42 U.S.C. 2011 et seq.).'' In 1988-89, NRC 
conducted a rulemaking to set out the standards and procedures that 
would be used in licensing proceedings for determining whether NRC's 
adoption of DOE's FEIS is practicable. See, 53 FR 16131; May 5, 1988 
(proposed rule); 54 FR 27864; July 3, 1989 (final rule). In that 
rulemaking, NRC determined that the NWPA had altered NRC's ordinary 
NEPA responsibilities in such a manner as to narrow the scope of NRC's 
independent review of environmental issues that had been decided by DOE 
in its FEIS. As summarized by the Commission in the final rule,

    [T]he Commission continues to emphasize its view that its role 
under NWPA is oriented toward health and safety issues and that, in 
general, nonradiological environmental issues are intended to be 
resolved in advance of NRC licensing decisions through the actions 
of the Department of Energy, subject to Congressional and judicial 
review in accordance with NWPA and other applicable law. The 
Commission anticipates that many environmental questions would have 
been, or at least could have been, adjudicated in connection with an 
environmental impact statement prepared by DOE, and such questions 
should not be reopened in proceedings before NRC.

54 FR at 27865.
    Accordingly, NRC's 1989 final rule established, in a new 10 CFR 
51.109, ``Public hearings in proceedings for issuance of materials 
license with

[[Page 5763]]

respect to a geologic repository,'' procedures and criteria for 
implementing the statutory directive to adopt DOE's FEIS to the extent 
practicable. Under Sec.  51.109(a)(1), the NRC staff must present its 
position on whether it is practicable to adopt, without further 
supplementation, DOE's FEIS upon publication of the notice of hearing 
in the Federal Register. Under Sec.  51.109(a)(2), parties to a 
proceeding are given the opportunity to submit contentions asserting 
that it is not practicable to adopt:

    (a)(2) Any other party to the proceeding who contends that it is 
not practicable to adopt the DOE [FEIS], as it may have been 
supplemented, shall file a contention to that effect within thirty 
(30) days after the publication of the notice of hearing in the 
Federal Register. Such contention must be accompanied by one or more 
affidavits which set forth factual and/or technical bases for the 
claim that, under the principles set forth in paragraphs (c) and (d) 
of this section, it is not practicable to adopt the DOE [FEIS], as 
it may have been supplemented. The presiding officer shall resolve 
disputes concerning adoption of the DOE [FEIS] by using, to the 
extent possible, the criteria and procedures that are followed in 
ruling on motions to reopen under Sec.  2.236 of this chapter.

10 CFR 51.109(a)(2)(2007).\1\ The criteria governing the practicability 
of adoption are set forth in Sec.  51.109(c):
---------------------------------------------------------------------------

    \1\ In 2004, Sec.  51.109(a)(2) was revised to reference a new 
section number for motions to reopen as part of the Commission's 
revision of its rules of practice in adjudicatory proceedings. See 
69 FR 2182, 2276 (January 14, 2004). The standards for reopening 
were not changed.

    (c) The presiding officer will find that it is practicable to 
adopt any environmental impact statement prepared by the Secretary 
of Energy in connection with a geologic repository proposed to be 
constructed under Title I of the Nuclear Waste Policy Act of 1982, 
as amended, unless:
    (1)(i) The action proposed to be taken by the Commission differs 
from the action proposed in the license application submitted by the 
Secretary of Energy; and
    (ii) The difference may significantly affect the quality of the 
human environment; or
    (2) Significant and substantial new information or new 
considerations render such environmental impact statement 
inadequate.

10 CFR 51.109(c) (2007).

B. DOE's FEIS

    The NWPA, inter alia, establishes a process for the 
characterization, siting, construction, and operation of a geologic 
repository at the YM site. As relevant here, when site characterization 
activities are completed, the Secretary of Energy may recommend site 
approval to the President and any such recommendation must be 
accompanied by a FEIS. See, section 114(a)(1) of the NWPA. Then, the 
President may recommend the site to the Congress and must include a 
copy of the documents comprising the basis of the Secretary's 
recommendation, including the FEIS. See, section 114(a)(2). The State 
is then given an opportunity to submit a notice of disapproval of the 
site designation which, however, may be overcome by a joint resolution 
of the Congress approving the recommended repository site. See, 
sections 115 and 116 of the NWPA. If the site designation is permitted 
to take effect under the provisions of section 115, the Secretary of 
Energy shall submit an application for a construction authorization to 
NRC. See, section 114(b) of the NWPA. In February 2002, the Secretary 
issued the Final Environmental Impact Statement for a Geologic 
Repository for the Disposal of Spent Nuclear Fuel and High-Level 
Radioactive Waste at Yucca Mountain, Nye County, Nevada and recommended 
the YM site to the President. The President then recommended the YM 
site to the Congress. In April 2002, the State of Nevada submitted a 
notice of disapproval to the Congress. However, Congress approved the 
site designation by a Joint Resolution signed by the President on July 
23, 2002. Public Law 107-200, 116 Stat. 735 (2002) (codified at 42 
U.S.C. 10135 note (Supp. IV 2004)).

C. The NEI Decision

    Thereafter, the State of Nevada sought court review of the 
Secretary's decision to recommend the YM site to the President, the 
President's decision to recommend the YM site to the Congress, and 
DOE's FEIS, which had been used to support both recommendations. In 
response, DOE argued that the Joint Resolution had rendered moot 
Nevada's challenges to the Secretary's and the President's 
recommendations, with the result that Nevada's claims that the FEIS was 
inadequate could not be considered as part of the challenges to these 
recommendations. Further, DOE argued that, insofar as the FEIS might be 
used to support future DOE and NRC decisions, the FEIS was unripe for 
review because there was no final agency action affecting the State at 
that time.
    In the litigation resulting in the NEI decision, the State's 
challenges to the Secretary's and the President's recommendations and 
to the FEIS were combined with other issues raised by the State and 
with other lawsuits concerning the YM repository, including challenges 
to both the Environmental Protection Agency's final standards (66 FR 
32,074; June 13, 2001) and NRC's final regulations for the proposed 
geologic repository at YM (66 FR 55,732; November 2, 2001). However, 
NRC's procedures and criteria for adoption of DOE's FEIS were not 
issues raised in any of the lawsuits and NRC's rationale for adoption 
of the Sec.  51.109 procedures and criteria was neither briefed nor 
argued by NRC. NRC did describe in its brief its regulatory adoption 
process in the context of an issue raised by Nevada concerning NRC's 
regulation at 10 CFR 63.341, which required DOE to include the results 
of its projections of peak dose in its FEIS.\2\ See, Brief for the 
Federal Respondents, State of Nevada v. U.S. Nuclear Regulatory 
Commission, Nos. 01-1116 and 03-1058, June 6, 2003, at 44-45. In 
resolving this issue, the court noted NRC's statement ``that it has 
imposed no categorical limitation on any challenge to DOE's peak dose 
calculations and that, under its regulations, parties to the proceeding 
may challenge the practicability of adopting aspects of DOE's EIS, 
including the peak dose calculations, based on substantial new 
information to the contrary.'' 375 F.3d 1251, at 1300 (internal 
quotations omitted).
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    \2\ In 2005, NRC proposed to eliminate Sec.  63.341 as part of 
its proposed amendments to 10 CFR Part 63. See, 70 FR 53313 
(September 8, 2005).
---------------------------------------------------------------------------

    In NEI, the court agreed with DOE that Congress' enactment of the 
Joint Resolution had rendered moot issues raised concerning the 
Secretary's and the President's recommendation of the YM site. See 373 
F.3d at 1309. Thus, the court held that ``[i]nsofar as Nevada's instant 
challenge to the FEIS is intended to reverse the decision to select the 
Yucca site, the challenge is moot * * *'' 373 F.3d at 1312. However, 
the court noted the anticipated use of the FEIS in future 
decisionmaking related to YM, including its potential adoption by NRC 
in NRC's licensing proceeding, and considered whether the court should 
review the FEIS because it might be used to support future decisions. 
The court determined that the FEIS was not ripe for review under the 
two-part test used to determine ripeness: The fitness of the issue for 
judicial decision and the hardship to the parties of withholding court 
consideration. Under the first prong of the test, the court noted that 
it was unclear to what extent NRC would adopt the FEIS and whether the 
FEIS would require supplementation prior to any adoption. The court 
concluded that ``[o]ur review of the FEIS therefore would benefit from 
postponing consideration until the FEIS has been used to support a 
specific, concrete, and final decision.'' 373 F.3d at 1313. Under

[[Page 5764]]

the second prong of the test, the court concluded that ``withholding 
consideration of Nevada's substantive claims at this time imposes no 
hardship on Nevada * * * [because] Nevada may raise its substantive 
claims against the FEIS if and when NRC or DOE makes * * * a final 
decision.'' Id. In reaching this conclusion as to hardship, the court 
stated that ``we rely on the assurances of counsel for both NRC and DOE 
at oral argument that Nevada will be permitted to raise its substantive 
challenges to the FEIS in any NRC proceeding to decide whether to adopt 
the FEIS and in any DOE proceeding to select a transportation 
alternative.'' Id.

The Petition

    The petitioner agrees that Sec.  51.109 ``in most respects tracks 
the language of [section 114(f)(4) of the NWPA]'' on which it is based. 
Petition at 2. However, the petitioner claims that this regulation also 
adds three special provisions not found in the statute: (1) Special 
procedures for litigation of NEPA issues; (2) allowance for adoption of 
DOE supplements to the FEIS; and (3) special standards that specify in 
some detail precisely when NRC will adopt the FEIS. The petitioner 
believes that the Commission must conduct a rulemaking to eliminate the 
``special litigation procedures'' and to correct the ``special adoption 
standards.'' The petition makes no further reference to the second 
``special provision'' and suggests no rule change with respect to this 
provision. There is no apparent reason why Congress would have intended 
to exclude supplements to the FEIS in its requirement for NRC to adopt 
DOE's FEIS to the extent practicable, so we do not regard this 
provision of the regulation as being within the petition for 
rulemaking.
    To correct the criteria for assessing the practicability of 
adoption, petitioner requests that the Commission add a new paragraph 
(h) to Sec.  51.109:

    Nothing in this section shall be construed to limit the ability 
of any party or interested governmental participant to challenge in 
a licensing hearing any environmental impact statement (including 
any supplement thereto) prepared by the Secretary of Energy on the 
ground that such statement violates NEPA or the regulations of the 
Council on Environmental Quality, provided that the challenge is not 
barred by traditional principles of federal collateral estoppel. 
Collateral estoppel shall not bar the admission of a NEPA contention 
if the standards in subparagraphs (c)(1) and (c)(2) of this section 
are met, provided that the change in the proposed action or new 
information or considerations became known after the litigation in 
question.

    Petitioner further proposes that the Commission delete Sec.  
51.109(a)(2), with the result that the admission of NEPA contentions 
will be guided by the same principles in 10 CFR 2.309(f) that apply to 
other kinds of contentions.

Public Comments on the Petition

    Three comment letters were received on the petition. The Board of 
Lincoln County Commissioners supports the petition for the reasons 
advanced in the petition, noting that it expects to participate in an 
NRC proceeding which will examine NRC's independent review of the FEIS. 
The National Association of Regulatory Utility Commissioners (NARUC) 
expressed the view that Nevada's substantive issues on the FEIS could 
be considered in NRC's licensing proceeding without any need to amend 
the regulations because, inter alia, ``the Court of Appeals provided 
the State the right to have consideration be given to outstanding 
concerns with the EIS prepared for the Yucca Mountain repository when * 
* * the NRC prepares its own EIS for the licensing decision.'' \3\ DOE 
does not think that Nevada's requested rulemaking is warranted because 
``[t]he regulation at issue comports with NRC's responsibilities under 
both NEPA and the NWPA, and nothing in the NEI case supports Nevada's 
claim that the regulation must be revised.''
---------------------------------------------------------------------------

    \3\ It is not clear whether NARUC recognizes that NRC may adopt 
DOE's EIS to the extent practicable, rather than prepare its own 
EIS.
---------------------------------------------------------------------------

Reasons for Denial

A. The Adoption Standards in Sec.  51.109(c)

    With regard to the ``special adoption standards'' in Sec.  
51.109(c), petitioner notes that both Nevada and the Council on 
Environmental Quality (CEQ) had objected to NRC's criteria for 
determining that it is practicable to adopt the FEIS. In comments 
submitted at the time of the 1988-89 rulemaking, Nevada and CEQ argued 
that NEPA does not allow NRC to adopt the FEIS without a full and 
independent review of the FEIS. Further, Nevada also disagreed, and 
continues to disagree, with NRC's position in that rulemaking that in 
the NWPA, Congress intended to alter NRC's ordinary NEPA obligations 
and lessened the need for NRC to conduct a fully independent review of 
the FEIS prior to adoption. In support of its position, the petitioner 
cites the statements of two Senators made during the congressional 
debates leading to the NWPA, statements considered by NRC in its 
rulemaking but rejected as ``less illuminating'' than the legislative 
history stemming from the House of Representatives' consideration of 
the issues. See, 53 FR 16137.
    The State's main basis for requesting rulemaking stems from the NEI 
court's discussion of NRC's potential adoption of the FEIS. The 
petitioner notes the court's observations that Nevada may raise its 
substantive claims against the FEIS when it is used by NRC to support a 
future construction authorization or licensing decision, and that NRC 
counsel had assured the court that Nevada would be permitted to raise 
its substantive challenges to the FEIS in any NRC proceeding to decide 
whether to adopt the FEIS. The petitioner further notes the court's 
statement that NWPA's mandate that the FEIS be adopted by NRC ``to the 
extent practicable'' * * * ``cannot reasonably be interpreted to permit 
NRC to premise a construction-authorization or licensing decision upon 
an EIS that does not meet the substantive requirements of the NEPA or 
[CEQ's] NEPA regulations.'' 373 F.3d at 1314.
    Finally, the petitioner notes the court's rejection of the position 
taken in a letter from NRC counsel to the court that Sec.  51.109(c) 
only affected issues that could be raised and litigated in NRC 
administrative proceedings and not issues that could be raised on 
judicial review. See, Petition at 5; 373 F.3d 1314. Rather, the court 
stated, ``Nevada's claims have not been adjudicated on the merits here 
and presumably will not have been passed upon by any court prior to the 
relevant NRC proceedings. The claims thus would certainly raise `new 
considerations' with regard to any decision to adopt the FEIS.'' Id. 
The petitioner believes that ``any Commission interpretation of 10 CFR 
51.109 at odds with counsel's representation at oral argument would 
clearly be unlawful'' and asserts that ``[NRC's] current regulation is 
directly at odds with [its counsel's and the court's] interpretation,'' 
so that the Commission must correct the regulation. Petition at 5-6.
    Petitioner's assertion that Sec.  51.109(c) must be ``corrected'' 
because it is ``directly at odds'' with the interpretation of this 
regulation by the NEI court directly contradicts what the court itself 
said on the subject of any need for the Commission to amend its 
regulations. The court stated:

    Government counsel's unequivocal representation to the court 
during oral argument that Nevada will not be foreclosed from raising 
substantive claims against the FEIS in administrative proceedings 
comports with the terms of the regulation and reflects a reasonable 
and compelling interpretation.

[[Page 5765]]

Therefore, on the record at hand, there is no reason to assume that 
the regulation will bar consideration of Nevada's substantive claims 
in the relevant NRC administrative proceedings.

373 F.3d at 1314.
    Far from suggesting that NRC's regulation needed to be amended to 
accommodate the court's interpretation of the regulation, the court 
expressed its satisfaction that there was no reason to assume that the 
present language of the regulation would bar consideration of Nevada's 
substantive claims. This conclusion follows the court's explicit 
consideration of the language of the Sec.  51.109(c) criteria. The 
court focused on the second criterion; i.e., that it might not be 
practicable for NRC to adopt the FEIS if ``significant and substantial 
new information or new considerations render such environmental impact 
statement inadequate.'' The court noted that ``Government counsel 
assured the court that NRC will not construe the `new information or 
new considerations' requirement to preclude Nevada from raising 
substantive claims against the FEIS in administrative proceedings.'' 
Id. Further, the court observed that ``Nevada's claims have not been 
adjudicated on the merits here and presumably will not have been passed 
upon by any court prior to the relevant NRC proceedings. The claims 
thus would certainly raise `new considerations' with regard to any 
decision to adopt the FEIS.'' Id.\4\ There is no need for the 
Commission to expend the resources needed for a rulemaking to 
``correct'' a rule which the court gave no indication of needing 
correction. NRC will treat Nevada's substantive claims against the FEIS 
as ``new considerations'' within the framework of Sec.  51.109(c).
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    \4\ At the same time, the court recognized that ``[t]he NWPA's 
mandate that the FEIS be adopted by NRC `to the extent practicable' 
is intended to avoid duplication of the environmental review 
process.'' 373 F.3d 1251.
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    Although the petitioner frames its request for correction of Sec.  
51.109(c) in terms of a supposed need to bring the regulation into line 
with the views of the court, the petitioner may actually be seeking to 
raise once again the issues the State and CEQ raised in comments made 
during the 1988-89 rulemaking. The petition raises no issues that were 
not raised and fully considered in that rulemaking. The Commission's 
rationale for the adoption criteria issued as part of that rulemaking 
was not before the court in NEI and the court, as explained above, 
found nothing amiss with the criteria. The court's decision presents no 
reasons for the Commission to reexamine the basis of that rulemaking.

B. The Litigation Procedures in Sec.  51.109(a)(2)

    With regard to the ``special litigation procedures,'' the 
petitioner notes that Sec.  51.109(a)(2) conditions the admissibility 
of a contention which asserts that NRC should not adopt the FEIS on 
satisfaction, to the extent possible, of the standards for reopening a 
closed record under 10 CFR 2.326. The petitioner asserts that the 
principal difference between this standard and the contention standard 
in 10 CFR 2.309(f) that applies to other issues is that the former 
requires submission of admissible evidence, while the latter does not. 
The petitioner asserts that NRC's creation of ``special litigation 
procedures'' violates NEPA: ``Section 102(2)(C) of NEPA requires that 
an FEIS must be considered in the `existing agency review processes' 
[emphasis added], not some different review process applicabl[e] only 
to NEPA where interested persons must satisfy additional pleading 
requirements that would otherwise not apply.'' Petition at 6 (citing 
Calvert Cliffs, 449 F.2d 1109 (D.C. Cir. 1971); 40 CFR 1505.1; Aberdeen 
& Rockfish R. Co. v. SCRAP, 422 U.S. 289, 320 (1975)).
    The relevant portion of section 102(2)(C) of the NEPA states that 
copies of the requisite ``detailed statement'' must ``accompany the 
proposal through the existing agency review processes.'' \5\ This 
language does not require that an agency establish one uniform agency 
process for all NEPA reviews. Here, NRC has adopted a contention 
standard in Sec.  51.109(a)(2) which takes account of the NWPA's effect 
on its NEPA responsibilities as explained in its 1988-89 rulemaking. In 
the relevant portion of the Calvert Cliffs decision, the question 
before the court was ``whether the [Atomic Energy] Commission is 
correct in thinking that its NEPA responsibilities may be carried out 
in toto outside the hearing process--whether it is enough that 
environmental data and evaluations merely accompany the application 
through the review process, but receive no consideration whatever from 
the hearing board.'' Calvert Cliffs, 449 F.2d at 1117 (internal 
quotation marks omitted). In the discussion that follows, the court 
focused on the meaning of the term ``accompany,'' not whether changes 
in agency procedures for considering NEPA issues would be inconsistent 
with the ``existing agency review process'' language. The court 
concluded that the word ``accompany'' meant that the detailed statement 
must be considered during the agency review process. In Aberdeen, the 
Court held that an oral hearing held before an agency made a 
recommendation or report on a proposal for Federal action was not an 
``existing agency review process'' under section 102(2)(C) of the NEPA 
and thus, a FEIS was not required to be available during this hearing. 
See, 422 U.S. at 320-21. Thus, the Supreme Court's discussion in 
Aberdeen focuses on when the FEIS must be made available, not whether 
the term ``existing agency review process'' means that one contention 
standard must apply to all NEPA reviews in all cases before an agency. 
In short, the case law cited by the petitioner does not provide a 
reason for NRC to delete Sec.  51.109(a)(2) from its regulations.
---------------------------------------------------------------------------

    \5\ The CEQ regulation at 40 CFR 1505.1 is based on the 
statutory language and requires that agency procedures require 
``that relevant environmental documents * * * accompany the proposal 
through existing agency review processes so that agency officials 
use the statement in making decisions.''
---------------------------------------------------------------------------

Conclusion

    The NEI court found no need for NRC to amend its regulations for 
the purpose of allowing the State to have its substantive claims 
examined in NRC's licensing proceeding for a potential YM repository. 
Petitioner's claims that NRC's adoption criteria violate the NEPA or 
the NWPA were addressed in the 1988-89 rulemaking and petitioner offers 
no new arguments for the Commission's consideration. Nor does the 
petitioner provide adequate legal support for NRC to amend its 
litigation procedures. Given this, it would be an unwise expenditure of 
resources for the Commission to conduct a rulemaking on this matter.
    For these reasons, the Commission denies PRM-51-9.

    Dated at Rockville, Maryland, this 25th day of January 2008.

    For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.

Appendix I--Commissioner Jaczko's Comments on SECY-07-0159, Denial of a 
Petition for Rulemaking (PRM-51-9)--State of Nevada

    I approve in part and disapprove in part the recommendation to 
proceed with option 2 which would deny the rulemaking petition while 
offering the assurance that the NRC will interpret the existing 
regulations to allow substantive claims to the Department of 
Energy's (DOE) Final Environmental Impact Statement (FEIS). Instead, 
I approve a combination of options 1 and 2. The original regulations 
governing the agency's review of the FEIS were based upon an 
assumption of how the site selection process for a potential 
repository would unfold. But because the judicial review of 
environmental

[[Page 5766]]

issues did not happen as we envisioned, I believe we should grant 
the petition and fix the corresponding regulations to appropriately 
reflect that the entire FEIS will be open for litigation in any NRC 
administrative proceeding regarding a repository application. At the 
same time, I believe the notice of the proposed rule should explain 
that the agency will interpret the regulations in a manner 
consistent with this approach should the rulemaking not be completed 
in time for a hearing on a potential Yucca Mountain license 
application.
    Based upon the history of this issue, I think granting the 
petition and amending our regulations is the right answer in this 
case. First, it is important to remember that the NRC could have 
originally interpreted the Nuclear Waste Policy Act (NWPA) to allow 
the NRC to handle the adoption of DOE's FEIS in the same manner it 
currently handles the adoption of any other federal agency EIS in 
the NEPA review process. The NWPA's direction to avoid duplicative 
environmental analysis does not necessarily equate to a direction to 
eliminate most, if not all, of the FEIS from the NRC's hearing 
process. I believe we should treat DOE's FEIS in the same manner as 
we treat any other FEIS submitted by a similarly situated regulated 
entity. In this case, that would mean defending the agency's 
independent review of the entire FEIS--not just limited portions of 
it--in the NRC's administrative proceedings. Commenters, including 
the Council on Environmental Quality, said as much in comments to 
this rulemaking and I find their logic persuasive. Had the agency 
opted for that interpretation in the proposed rulemaking, perhaps we 
would not find ourselves facing this petition today.
    NRC's rationale for not doing so, however, while not ideal, made 
sense in the context of what the agency thought would happen with 
the FEIS. According to the rulemaking history, section 51.109 of 
NRC's regulations was based, at least in large part, upon the theory 
that the administrative litigation of NEPA issues at the NRC should 
be limited because many of these issues should have already had the 
opportunity to be litigated in another forum. Thus, legal doctrines 
which prevent issues and claims from being re-litigated, such as res 
judicata and collateral estoppel, would prevent the re-litigation of 
these issues in NRC hearings. This was premised upon NRC's 
expectation that an interested person would have had an opportunity 
to legally challenge DOE's FEIS after it was used to support the 
recommendations of Yucca Mountain as a site for a repository by the 
Secretary of Energy and the President.
    With that expectation in mind, the regulations were then 
designed to ensure that the environmental issues in any NRC 
proceeding on the proposed repository would appropriately focus on 
issues that were new--that were not able to be raised at the earlier 
opportunity to challenge the FEIS. So the regulations adopted in 
section 51.109 focused not on the entire FEIS, as would be the 
normal NRC practice, but on the NRC's decision to adopt the FEIS. 
The regulations limited challenges to NRC's adoption decision to 
those issues that had changed from the original application, or that 
were issues raising ``significant and substantial new information'' 
since that earlier opportunity to challenge the FEIS. This makes 
sense if any of the other issues regarding the FEIS had already had 
the opportunity to be challenged. Given that presumption, it also 
explains why the regulations direct the Board to use the higher 
standards governing a motion to reopen when ruling upon the issues 
raised regarding adoption of the FEIS--because litigating the FEIS 
in NRC's administrative proceeding was seen as re-opening the record 
on an already litigated FEIS.
    All that being said, as is often the case, actual events 
regarding judicial review of environmental issues transpired 
differently. Instead of the FEIS being used to support the 
recommendation of Yucca Mountain as a site for a repository, there 
was a Joint Resolution of Congress approving the Yucca Mountain site 
designation. This change of events, according to the Federal Court 
of Appeals decision in Nuclear Energy Institute, Inc. v. 
Environmental Protection Agency, 373 F.3d 1251 (D.C. Circuit 2004), 
rendered any such challenge to the FEIS' support for the Yucca 
Mountain site moot; and to the extent the NRC may rely upon the 
FEIS, rendered challenges unripe because the NRC had not reached a 
decision regarding adopting or relying upon the FEIS in a way that 
could have yet harmed the parties.
    It was part of this discussion that led the NRC and DOE to 
assure the court that the parties would have an opportunity during 
NRC's administrative hearing to raise substantive challenges to the 
FEIS. And it is this assurance from NRC counsel that generated the 
petition for rulemaking. In essence, the petitioners do not 
understand how NRC's current regulations can be in accord with the 
assurance the court relied upon--that parties would have the 
opportunity at the NRC to substantively challenge the FEIS. Because 
current NRC regulations limit challenges to NRC's decision about 
adoption of the FEIS rather than the FEIS itself; and further limit 
those challenges to require they be based upon significant and 
substantial new information, it is easy to see how our stakeholders 
might be confused. Add to that the direction in the current 
regulations that the Boards are directed to review any challenge to 
the decision regarding adoption using the standards that govern re-
opening a record--which is an intentionally higher bar for review--
and there can be little question that the current regulations are 
confusing in light of the discussion in front of the court and the 
relied upon assurance that substantive issues regarding the FEIS 
could, in fact, be raised in NRC proceedings.
    For all of these reasons, it appears to me that the best way to 
transparently resolve the real question presented--the question of 
what issues surrounding the FEIS can be challenged in a prospective 
hearing on an application for a construction authorization--is to 
grant this petition and ensure that the regulations transparently 
capture precisely how the environmental review will be conducted in 
NRC's administrative proceeding. The earlier rulemaking was based 
upon assumptions, but we can now answer the questions with the 
benefit of knowing now what we did not know then.
    I recognize that the timing of the agency's decision on this 
petition is not ideal because an application for a repository may be 
submitted before this rulemaking would end. That is especially 
unfortunate in this particular situation where the petition was 
filed in 2005. Had we granted this petition at the close of the 
public comment period in October 2005, we likely would now be voting 
on the final rule instead of voting on this petition. I am hopeful 
that the staff's work to improve the rulemaking process will include 
ways to improve the timeliness of the petition process so we are not 
in this unfortunate position in the future.
    But we are where we are, and with that in mind, I believe the 
notice that grants the petition for rulemaking should indicate that, 
if the rulemaking is not resolved prior to the receipt of an 
application for a repository, the agency intends to interpret the 
regulations in a manner consistent with the court's decision--as the 
staff has drafted in the notice accompanying option 2--with some 
additional clarification. The notice should also explain that 
section 51.109(c), which indicates that challenges to the NRC's 
adoption decision are to be based upon ``significant and substantial 
new information'', will be interpreted in a manner that recognizes, 
as the court did, that claims regarding DOE's FEIS have not been 
adjudicated on the merits and thus, would certainly raise ``new 
considerations'' with regard to any decision to adopt the FEIS. The 
notice should also make it clear that the current direction in 
section 51.109(a) that the presiding officer should, to the extent 
possible, use the criteria for ruling on a motion to reopen in 
resolving disputes regarding the adoption of the FEIS, is rendered 
moot. The notice should clearly state that it is not possible to 
rely upon criteria used for a motion to reopen given the relevant 
history of this matter where there was no opportunity to originally 
open these issues. Instead, the contention admissibility should be 
determined by reliance upon section 2.309(f), the agency's current 
contention standard.
    I appreciate that because these regulations have not yet been 
interpreted and applied in any proceeding, the agency has more 
flexibility to interpret them now without recreating them in a new 
rulemaking--and thus the recommendation for option 2. But this is 
not a situation where the regulations intent could have been 
clearer; this is a situation where the interpretation of the 
regulations will essentially require the agency to exercise great 
latitude in applying them in a manner consistent with the discussion 
in court. Transparency should dictate that we, at least, try to 
correct this situation through the appropriate rulemaking channels 
regardless of the impacts of the timing of this decision. We should 
not let the prospect of a potential application complicate what is 
clearly the right answer. We can and should deal with the possible 
complications of an intervening application

[[Page 5767]]

by providing appropriate guidance should the rulemaking not resolve 
itself in time. But the two are not mutually exclusive and thus, I 
support a combination of options 1 and 2--granting the petition and 
clarifying in the notice the agency's regulatory interpretation of 
the existing regulations should they be required to be used prior to 
completion of the rulemaking.
    Also, this paper should be reviewed for a release determination 
and, at a minimum, the voting record and SRM from this paper should 
be made publicly available five business days after the letter is 
sent to the petitioner, as is current practice for release of 
information regarding decisions on rulemaking petitions.
    Gregory B. Jaczko.

[FR Doc. E8-1751 Filed 1-30-08; 8:45 am]
BILLING CODE 7590-01-P


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