Comment on FR Doc # 2026-12702, NRC-2025-1370-0008, from Anonymous

Comment on Proposed Rule – At-Risk Construction and Coordination with the Endangered Species Act and National Historic Preservation Act The proposed rule discusses construction activities that may be undertaken at an applicant's own risk before license issuance but does not address how these provisions interact with the NRC's obligations under other Federal environmental statutes, particularly the Endangered Species Act (ESA) and the National Historic Preservation Act (NHPA). This omission creates unnecessary uncertainty for both applicants and NRC staff. The proposed rule appropriately explains that applicants choosing to proceed with at-risk construction assume the financial risk that a license may ultimately not be issued. However, the rule does not distinguish financial risk from environmental compliance obligations. Certain early construction activities, including land clearing, grading, tree removal, excavation, utility installation, or other ground-disturbing activities, may affect listed species, designated critical habitat, or historic properties before the NRC has completed its environmental review and associated consultations. The rule should expressly clarify that the concept of at-risk construction relates only to licensing risk and does not alter or diminish requirements arising under other applicable Federal statutes. In particular, the rule should acknowledge the relationship between at-risk construction and ESA Section 7 consultation. Once consultation has been initiated, Section 7(d) of the ESA prohibits irreversible or irretrievable commitments of resources that would foreclose the formulation or implementation of reasonable and prudent alternatives. Although the proposed rule does not purport to modify the ESA, its silence on this issue could create confusion regarding the extent to which early construction activities may proceed while environmental reviews and consultations remain ongoing. Similar concerns exist under the NHPA. Ground-disturbing activities undertaken before completion of the Section 106 process could adversely affect historic properties or limit the range of alternatives available during consultation. The proposed rule does not explain how applicants and NRC staff should distinguish between permissible at-risk construction and activities that could interfere with the NRC's ability to satisfy its responsibilities under the NHPA. The final rule should therefore include a clarifying provision stating that authorization to undertake construction at an applicant's own risk does not constitute authorization to undertake activities inconsistent with other applicable Federal environmental statutes, nor should it be interpreted as limiting the NRC's ability to fulfill its obligations under those statutes. Alternatively, the NRC should provide implementation guidance identifying the types of activities that may proceed before completion of environmental review and those that should generally await completion of applicable consultations. Providing this clarification would improve regulatory certainty, promote consistent implementation, reduce the potential for misunderstandings by applicants, and help ensure that the streamlining objectives of the proposed rule are achieved without creating unnecessary conflicts with existing environmental requirements.