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.

Proposed Rules Federal Register

5762 

Vol. 73, No. 21 

Thursday, January 31, 2008 

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. 

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 pdr@nrc.gov. 

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: jxb5@nrc.gov. 

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 § 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 


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1 In 2004, § 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. 

2 In 2005, NRC proposed to eliminate § 63.341 as 

part of its proposed amendments to 10 CFR Part 63. 

See, 70 FR 53313 (September 8, 2005). 

respect to a geologic repository,’’

procedures and criteria for 

implementing the statutory directive to 

adopt DOE’s FEIS to the extent 

practicable. Under § 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 

§ 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 § 2.236 of this chapter. 

10 CFR 51.109(a)(2)(2007).1 The criteria 

governing the practicability of adoption 

are set forth in § 51.109(c): 

(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 

§ 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). 

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 


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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. 

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 § 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 § 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 § 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.’’

Reasons for Denial 

A. The Adoption Standards in 

§ 51.109(c) 

With regard to the ‘‘special adoption 

standards’’ in § 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 constructionauthorization 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 § 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 § 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. 


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4At 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. 

5The 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.’’

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 

§ 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 § 51.109(c). 

Although the petitioner frames its 

request for correction of § 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 

§ 51.109(a)(2) 

With regard to the ‘‘special litigation 

procedures,’’ the petitioner notes that 

§ 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 § 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 

§ 51.109(a)(2) from its regulations. 

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 


sroberts on PROD1PC70 with PROPOSALS
5766 Federal Register / Vol. 73, No. 21 / Thursday, January 31, 2008 / Proposed Rules 

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 relitigated, 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 


sroberts on PROD1PC70 with PROPOSALS
Federal Register / Vol. 73, No. 21 / Thursday, January 31, 2008 / Proposed Rules 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 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Part 39 

[Docket Nos. FAA–2007–0413 and FAA–

2007–0414; Directorate Identifiers 2007–

NM–341–AD and 2007–NM–340–AD] 

RIN 2120–AA64 

Airworthiness Directives; Bombardier 

Model CL–600–2B19 (Regional Jet 

Series 100 & 440), CL–600–2C10 

(Regional Jet Series 700, 701 & 702), 

CL–600–2D15 (Regional Jet Series 

705), and CL–600–2D24 (Regional Jet 

Series 900) Airplanes 

AGENCY: Federal Aviation 

Administration (FAA), Department of 

Transportation (DOT). 

ACTION: Notice of proposed rulemaking 

(NPRM); correction. 

SUMMARY: The FAA is correcting 

typographical errors in two NPRMs that 

were published in the Federal Register 

on January 4, 2008 (73 FR 833, and 73 

FR 830). The errors resulted in incorrect 

docket numbers. One NPRM applies to 

all Bombardier Model CL–600–2B19 

(Regional Jet Series 100 & 440) 

airplanes. The other NPRM applies to 

all Bombardier Model CL–600–2C10 

(Regional Jet Series 700, 701 & 702), CL–

600–2D15 (Regional Jet Series 705), and 

CL–600–2D24 (Regional Jet Series 900) 

airplanes. Both actions proposed to 

require revising the Airworthiness 

Limitations Section of the Instructions 

for Continued Airworthiness to 

incorporate new limitations for fuel tank 

systems. 

ADDRESSES: You may examine the AD 

docket on the Internet at http:// 

www.regulations.gov; or in person at the 

Docket Management Facility between 9 

a.m. and 5 p.m., Monday through 

Friday, except Federal holidays. The AD 

docket contains this AD, the regulatory 

evaluation, any comments received, and 

other information. The address for the 

Docket Office (telephone 800–647–5527) 

is the Document Management Facility, 

U.S. Department of Transportation, 

Docket Operations, M–30, West 

Building Ground Floor, Room W12–140, 

1200 New Jersey Avenue SE., 

Washington, DC 20590. 

FOR FURTHER INFORMATION CONTACT: 

Rocco Viselli, Aerospace Engineer, 

Airframe and Propulsion Branch, ANE–

171, FAA, New York Aircraft 

Certification Office, 1600 Stewart 

Avenue, Suite 410, Westbury, New York 

11590; telephone (516) 228–7331; fax 

(516) 794–5531. 

SUPPLEMENTARY INFORMATION: On 

December 26, 2007, the FAA issued a 

notice of proposed rulemaking (NPRM) 

for all Bombardier Model CL–600–2B19 

(Regional Jet Series 100 & 440) 

airplanes. That NPRM, Directorate 

Identifier 2007–NM–341–AD, was 

published in the Federal Register on 

January 4, 2008 (73 FR 833). 

On December 21, 2007, the FAA 

issued an NPRM for all Bombardier 

Model CL–600–2C10 (Regional Jet 

Series 700, 701 & 702), CL–600–2D15 

(Regional Jet Series 705), and CL–600–

2D24 (Regional Jet Series 900) airplanes. 

That NPRM, Directorate Identifier 2007–

NM–340–AD, was published in the 

Federal Register on January 4, 2008 (73 

FR 830). 

Both actions proposed to require 

revising the Airworthiness Limitations 

Section of the Instructions for 

Continued Airworthiness to incorporate 

new limitations for fuel tank systems. 

As published, those NPRMs specify 

incorrect docket numbers throughout 

the preamble and the regulatory text. 

The docket number associated with 

NPRM Directorate Identifier 2007–NM–

341–AD was FAA–2008–0413, and the 

docket number associated with NPRM 

Directorate Identifier 2007–NM–340–AD 

was FAA–2008–0414. The docket 

numbers were assigned by the Federal 

Document Management System. We 

have been informed that incorrect 

docket numbers were assigned. The 

correct docket number for NPRM 

Directorate Identifier 2007–NM–341–AD 

is FAA–2007–0413. The correct docket 

number for NPRM Directorate Identifier 

2007–NM–340–AD is FAA–2007–0414. 

Any commenter who submitted 

comments to an original, incorrect 

docket number should check Docket No. 

FAA–2007–0413 or FAA–2007–0414 on 

www.regulations.gov to determine 

whether the comments have been 

received and filed in the appropriate 

docket. If not, or if it is not possible to 

determine whether comments have been 

posted to the correct docket, the 

comments should be resubmitted using 

the correct docket number. 

No other part of the preamble or 

regulatory information has been 

changed; therefore, the NPRMs are not 

republished in the Federal Register. 

The last date for submitting comments 

to the NPRMs remains February 4, 2008. 

Correction 

In the Federal Register of January 4, 

2008, on page 833, in the second 

column, the headings section of NPRM 

Docket No. FAA–2008–0413, Directorate 

Identifier 2007–NM–341–AD, is 

corrected to read as follows: 

‘‘[Docket No. FAA–2007–0413; 

Directorate Identifier 2007–NM–

341–AD]’’

In the Federal Register of January 4, 

2008, on page 833, in the third column, 

the SUPPLEMENTARY INFORMATION section 

of NPRM Docket No. FAA–2008–0413, 

Directorate Identifier 2007–NM–341–

AD, is corrected to read as follows: 

‘‘* * * Include ‘‘Docket No. FAA–

2007–0413; Directorate Identifier 2007–

NM–341–AD’’ at the beginning of your 

comments. * * *’’

In the Federal Register of January 4, 

2008, on page 830, in the second 

column, the headings section of NPRM 

Docket No. FAA–2008–0414, Directorate 

Identifier 2007–NM–340–AD, is 

corrected to read as follows: 

‘‘[Docket No. FAA–2007–0414; 

Directorate Identifier 2007–NM–340–

AD]’’

In the Federal Register of January 4, 

2008, on page 831, in the first column, 

the SUPPLEMENTARY INFORMATION section 

of NPRM Docket No. FAA–2008–0414, 

Directorate Identifier 2007–NM–340–

AD, is corrected to read as follows: 

‘‘* * * Include ‘‘Docket No. FAA–

2007–0414; Directorate Identifier 2007–

NM–340–AD’’ at the beginning of your 

comments. * * *’’

§ 39.13 [Corrected] 

In the Federal Register of January 4, 

2008, on page 835, in the first column, 

paragraph 2. of PART 39—

AIRWORTHINESS DIRECTIVES of 

NPRM Docket No. FAA–2008–0413, 

Directorate Identifier 2007–NM–341–AD 

is corrected to read as follows: 

* * * * * 

Bombardier, Inc. (Formerly Canadair): 

Docket No. FAA–2007–0413; Directorate 

Identifier 2007–NM–341–AD. 

* * * * * 

In the Federal Register of January 4, 

2008, on page 832, in the second 


sroberts on PROD1PC70 with PROPOSALS