[Federal Register Volume 63, Number 163 (Monday, August 24, 1998)]
[Notices]
[Pages 45096-45097]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-22634]


=======================================================================
-----------------------------------------------------------------------

NUCLEAR REGULATORY COMMISSION

[Docket No. 50-333]


Power Authority of the State of New York; Notice of Consideration 
of Issuance of Amendment to Facility Operating License, Proposed no 
Significant Hazards Consideration Determination, and Opportunity for a 
Hearing

    The U.S. Nuclear Regulatory Commission (the Commission) is 
considering issuance of an amendment to Facility Operating License No. 
DPR-59 issued to the Power Authority of the State of New York (the 
licensee, also known as the New York Power Authority) for operation of 
the James A. FitzPatrick Nuclear Power Plant (FitzPatrick) located in 
Oswego County, New York.
    The proposed amendment would revise the FitzPatrick technical 
specifications to provide for installation of additional racks to 
increase spent fuel storage capacity, and correct the maximum exposure 
dependent, infinite lattice multiplication factor for fuel bundles.
    The Commission had previously issued a Notice of Consideration of 
Issuance of an Amendment published in the Federal Register on February 
25, 1998 (63 FR 9613). This notice contained the Commission's proposed 
determination that the requested amendment involved no significant 
hazards considerations, offered an opportunity for comments on the 
Commission's proposed determination, and offered an opportunity for the 
applicant to request a hearing on the amendment and for persons whose 
interest might be affected to petition for leave to intervene.
    Due to oversight, the February 25, 1998, Notice of Consideration of 
Amendment did not provide notice that this application involves a 
proceeding on an application for a license amendment falling within the 
scope of section 134 of the Nuclear Waste Policy Act of 1982. Such 
notice is required by the Commission's regulations, 10 CFR 2.1107.
    The Commission hereby provides such notice that this is a 
proceeding on an application for a license amendment falling within the 
scope of section 134 of the Nuclear Waste Policy Act of 1982 (NWPA), 42 
U.S.C. 10154. Under section 134 of the NWPA, the Commission, at the 
request of any party to the proceeding, must use hybrid hearing 
procedures with respect to ``any matter which the Commission determines 
to be in controversy among the parties.''
    The hybrid procedures in section 134 provide for oral argument on 
matters in controversy, preceded by discovery under the Commission's 
rules and the designation, following argument of only those factual 
issues that involve a genuine and substantial dispute, together with 
any remaining questions of law, to be resolved in an adjudicatory 
hearing. Actual adjudicatory hearings are to be held on only those 
issues found to meet the criteria of section 134 and set for hearing 
after oral argument.
    The Commission's rules implementing section 134 of the NWPA are 
found in 10 CFR Part 2, Subpart K, ``Hybrid Hearing Procedures for 
Expansion of Spent Fuel Storage Capacity at Civilian Nuclear Power 
Reactors'' (published at 50 FR 41662 dated October 15, 1985). Under 
those rules, any party to the proceeding may invoke the hybrid hearing 
procedures by filing with the presiding officer a written request for 
oral argument under 10 CFR 2.1109. To be timely, the request must be 
filed within ten (10) days of an order granting a request for hearing 
or petition to intervene. (As outlined below, the Commission's rules in 
10 CFR Part 2, Subpart G continue to govern the filing of requests for 
a hearing and petitions to intervene, as well as the admission of 
contentions.) The presiding officer must grant a timely request for 
oral argument. The presiding officer may grant an untimely request for 
oral argument only upon a showing of good cause by the requesting party 
for the failure to file on time and after providing the other parties 
an opportunity to respond to the untimely request. If the presiding 
officer grants a request for oral argument, any hearing held on the 
application must be conducted in accordance with the hybrid hearing 
procedures. In essence, those procedures limit the time available for 
discovery and require that an oral argument be held to determine 
whether any contentions must be resolved in an adjudicatory hearing. If 
no party to the proceeding timely requests oral argument, and if all 
untimely requests for oral argument are denied, then the usual 
procedures in 10 CFR Part 2, Subpart G apply.
    By September 23, 1998, the licensee, if it wishes to invoke the 
hybrid hearing procedures, may file a request for such hearing with 
respect to issuance of the amendment to the subject facility operating 
license and any person whose interest may be affected by this 
proceeding and who wishes to invoke the hybrid hearing procedures and 
to participate as a party in such proceeding must file a written 
request for a hearing and a petition for leave to intervene. Requests 
for a hearing and a petition for leave to intervene shall be filed in 
accordance with the Commission's ``Rules of Practice for Domestic 
Licensing Proceedings'' in 10 CFR Part 2. Interested persons should 
consult a current copy of 10 CFR 2.714 which is available at the 
Commission's Public Document Room, the Gelman Building, 2120 L Street, 
NW., Washington, DC, and at the local public document room located at 
the Rochester Public Library, 115 South Avenue, Rochester, New York 
14610. If a request for a hearing and petition for leave to intervene 
seeking to invoke the hybrid hearing procedures in accordance with this 
notice is filed by the above date, the Commission or an Atomic Safety 
and Licensing Board, designated by the Commission or by the Chairman of 
the

[[Page 45097]]

Atomic Safety and Licensing Board Panel, will rule on the request and 
petition; and the Secretary or the designated Atomic Safety and 
Licensing Board will issue a notice of hearing or an appropriate order. 
Requests for hearing and petitions for leave to intervene that do not 
seek to invoke the hybrid procedures are not authorized by this notice 
and would be considered untimely.
    As required by 10 CFR 2.714, a petition for leave to intervene 
shall set forth with particularity the interest of the petitioner in 
the proceeding, and how that interest may be affected by the results of 
the proceeding. The petition should specifically explain the reasons 
why intervention should be permitted with particular reference to the 
following factors: (1) the nature of the petitioner's right under the 
Act to be made party to the proceeding; (2) the nature and extent of 
the petitioner's property, financial, or other interest in the 
proceeding; and (3) the possible effect of any order which may be 
entered in the proceeding on the petitioner's interest. The petition 
should also identify the specific aspect(s) of the subject matter of 
the proceeding as to which petitioner wishes to intervene. Any person 
who has filed a petition for leave to intervene or who has been 
admitted as a party may amend the petition without requesting leave of 
the Board up to 15 days prior to the first prehearing conference 
scheduled in the proceeding, but such an amended petition must satisfy 
the specificity requirements described above.
    Not later than 15 days prior to the first prehearing conference 
scheduled in the proceeding, a petitioner shall file a supplement to 
the petition to intervene which must include a list of the contentions 
which are sought to be litigated in the matter. Each contention must 
consist of a specific statement of the issue of law or fact to be 
raised or controverted. In addition, the petitioner shall provide a 
brief explanation of the bases of the contention and a concise 
statement of the alleged facts or expert opinion which support the 
contention and on which the petitioner intends to rely in proving the 
contention at the hearing. The petitioner must also provide references 
to those specific sources and documents of which the petitioner is 
aware and on which the petitioner intends to rely to establish those 
facts or expert opinion. Petitioner must provide sufficient information 
to show that a genuine dispute exists with the applicant on a material 
issue of law or fact. Contentions shall be limited to matters within 
the scope of the amendment under consideration. The contention must be 
one which, if proven, would entitle the petitioner to relief. A 
petitioner who fails to file such a supplement which satisfies these 
requirements with respect to at least one contention will not be 
permitted to participate as a party.
    Those permitted to intervene become parties to the proceeding, 
subject to any limitations in the order granting leave to intervene, 
and have the opportunity to participate fully in the conduct of the 
hearing, including the opportunity to present evidence and cross-
examine witnesses.
    If a hearing is requested, the Commission will make a final 
determination on the issue of no significant hazards consideration. The 
final determination will serve to decide when the hearing is held.
    If the final determination is that the amendment request involves 
no significant hazards consideration, the Commission may issue the 
amendment and make it immediately effective, notwithstanding the 
request for a hearing. Any hearing held would take place after issuance 
of the amendment.
    If the final determination is that the amendment request involves a 
significant hazards consideration, any hearing held would take place 
before the issuance of any amendment.
    Normally, the Commission will not issue the amendment until the 
expiration of the 30-day notice period. However, should circumstances 
change during the notice period such that failure to act in a timely 
way would result, for example, in derating or shutdown of the facility, 
the Commission may issue the license amendment before the expiration of 
the 30-day notice period, provided that its final determination is that 
the amendment involves no significant hazards consideration. The final 
determination will consider all public and State comments received. 
Should the Commission take this action, it will publish in the Federal 
Register a notice of issuance and provide for opportunity for a hearing 
after issuance. The Commission expects that the need to take this 
action will occur very infrequently.
    A request for a hearing and a petition for leave to intervene that 
seeks to invoke the hybrid hearing procedures in accordance with this 
notice must be filed with the Secretary of the Commission, U.S. Nuclear 
Regulatory Commission, Washington, DC 20555-0001, Attention: 
Rulemakings and Adjudications Staff, or may be delivered to the 
Commission's Public Document Room, the Gelman Building, 2120 L Street, 
NW., Washington, DC, by the above date. A copy of the petition should 
also be sent to the Office of the General Counsel, U.S. Nuclear 
Regulatory Commission, Washington, DC 20555-0001, and to Mr. David E. 
Blabey, 1633 Broadway, New York, NY 10019, attorney for the licensee.
    Untimely filings of petitions for leave to intervene, amended 
petitions, supplemental petitions and/or requests for hearing will not 
be entertained absent a determination by the Commission, the presiding 
officer or the presiding Atomic Safety and Licensing Board that the 
petition and/or request should be granted based upon a balancing of the 
factors specified in 10 CFR 2.714(a)(1)(I)-(v) and 2.714(d).
    For further details with respect to this action, see the licensee's 
application for amendment dated October 14, 1997, as supplemented July 
23, 1998. These documents are available for public inspection at the 
Commission's Public Document Room, the Gelman Building, 2120 L Street, 
NW., Washington, DC, and at the local public document room located at 
the Reference and Documents Department, Penfield Library, State 
University of New York, Oswego, NY 13126.

    Dated at Rockville, Maryland, this 18th day of August 1998.

    For the Nuclear Regulatory Commission.
Joseph F. Williams,
Project Manager, Project Directorate I-1, Division of Reactor 
Projects--I/II, Office of Nuclear Reactor Regulation.
[FR Doc. 98-22634 Filed 8-21-98; 8:45 am]
BILLING CODE 7590-01-P