[Federal Register Volume 67, Number 77 (Monday, April 22, 2002)]
[Notices]
[Pages 19600-19602]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-9731]


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NUCLEAR REGULATORY COMMISSION

[Docket No. 72-26]


Pacific Gas and Electric Co.; Notice of Docketing, Notice of 
Proposed Action, and Notice of Opportunity for a Hearing for a 
Materials License for the Diablo Canyon Independent Spent Fuel Storage 
Installation

    The Nuclear Regulatory Commission (NRC or Commission) is 
considering an application dated December 21, 2001, for a materials 
license under the provisions of 10 CFR part 72, from Pacific Gas and 
Electric (the applicant or PG&E) to possess spent fuel and other 
radioactive materials associated with spent fuel in an independent 
spent fuel storage installation (ISFSI) located in San Luis Obispo 
County. If granted, the license will authorize the applicant to store 
spent fuel in a dry storage cask system at the applicant's Diablo 
Canyon Power Plant (DCPP) site. Pursuant to the provisions of 10 CFR 
part 72, the term of the license for the ISFSI would be twenty (20) 
years.
    This application was docketed under 10 CFR part 72. The ISFSI 
Docket No. is 72-26.
    Prior to issuance of the requested license, the Commission will 
have made the findings required by the Atomic Energy Act of 1954, as 
amended (the Act), and the Commission's regulations. The issuance of 
the materials license will not be approved until the NRC has reviewed 
the application and has concluded that approval of the license will not 
be inimical to the common defense and security and will not constitute 
an unreasonable risk to the

[[Page 19601]]

health and safety of the public. The NRC will complete an environmental 
evaluation, in accordance with 10 CFR Part 51, to determine if the 
preparation of an environmental impact statement is warranted or if an 
environmental assessment and finding of no significant impact are 
appropriate. This action will be the subject of a subsequent notice in 
the Federal Register.
    By thirty (30) days from the date of publication of this notice in 
the Federal Register, the applicant may file a request for a hearing; 
and any person whose interest may be affected by this proceeding and 
who wishes to participate as a party in the proceeding must file a 
written request for a hearing and a petition for leave to intervene 
with respect to the subject materials license. Requests for a hearing 
and petitions 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 \1\, which is available at the 
Commission's Public Document Room (PDR), located at One White Flint 
North, 11555 Rockville Pike (first floor), Rockville, Maryland, or 
electronically on the Internet at the NRC Web site http://www.nrc.gov/reading-rm/doc-collections/cfr. If there are problems in accessing the 
document, contact the PDR Reference staff at 1-800-397-4209, 301-415-
4737, or by e-mail to [email protected]. If a request for hearing or petition 
for leave to intervene 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 Atomic Safety and Licensing Board Panel will rule 
on the request and/or petition, and the Secretary or the designated 
Atomic Safety and Licensing Board will issue a notice of hearing or an 
appropriate order. In the event that no request for hearing or petition 
for leave to intervene is filed by the above date, the NRC may, upon 
satisfactory completion of all required evaluations, issue the 
materials license without further prior notice.
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    \1\ The most recent version of Title 10 of the Code of Federal 
Regulations, published January 1, 2002, inadvertently omitted the 
last sentence of 10 CFR 2.714(d) and subparagraphs (d)(1) and (2), 
regarding petitions to intervene and contentions. Those provisions 
are extant and still applicable to petitions to intervene. Those 
provisions are as follows: ``In all other circumstances, such ruling 
body or officer shall, in ruling on--
    (1) A petition for leave to intervene or a request for hearing, 
considering the following factors, among other things:
    (i) The nature of the petitioner's rights under the Act to be 
made a party to the proceeding.
    (ii) The nature and extent of the petitioner's property, 
financial, or other interest in the proceeding.
    (iii) The possible effect of any order that may be entered in 
the proceeding on the petitioner's interest.
    (2) The admissibility of a contention, refuse to admit a 
contention if:
    (i) The contention and supporting material fail to satisfy the 
requirements of paragraph (b)(2) of this section; or
    (ii) The contention, if proven, would be of no consequence in 
the proceeding because it would not entitle petitioner to relief.''
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    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 a 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 that 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 the 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 a petition, without requesting leave of 
the Atomic Safety and Licensing Board up to 15 days prior to the 
holding of the first pre-hearing conference scheduled in the 
proceeding, but such an amended petition must satisfy the specificity 
requirements described above.
    Not later than fifteen (15) days prior to the first pre-hearing 
conference scheduled in the proceeding, a petitioner shall file a 
supplement to the petition to intervene which must include a list of 
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 action 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.
    A request for a hearing or petition for leave to intervene must be 
filed with the Secretary of the Commission, U.S. Nuclear Regulatory 
Commission, Washington, DC 20555, Attention: Document Control Desk or 
may be delivered to the Commission's Public Document Room, One White 
Flint North Building, 11555 Rockville Pike, Rockville, MD, by the above 
date. Because of continuing disruptions in delivery of mail to United 
States Government offices, it is requested that petitions for leave to 
intervene and requests for hearing be transmitted to the Secretary of 
the Commission either by means of facsimile transmission to 301-415-
1101 or by e-mail to [email protected]. A copy of the request for 
hearing and petition for leave to intervene should also be sent to the 
Office of the General Counsel, U.S. Nuclear Regulatory Commission, 
Washington, DC 20555, and because of continuing disruptions in delivery 
of mail to United States Government offices, it is requested that 
copies be transmitted either by means of facsimile transmission to 301-
415-3725 or by e-mail to [email protected]. A copy of the request 
for hearing and petition for leave to intervene should also be sent to 
Lawrence F. Womack, Vice President, Nuclear Services, Diablo Canyon 
Power Plant, P.O. Box 56, Avila Beach, California 93424. Where 
petitions are filed during the last ten (10) days of the notice period, 
it is requested that the petitioner promptly so inform the NRC by a 
toll-free telephone call (800-368-5642 Extension 415-8500) to E. 
William Brach, Director, Spent Fuel Project Office, Office of Nuclear 
Material Safety and Safeguards, with the following message: 
Petitioner's name and telephone number; date petition was mailed; plant 
name; and publication date and page number of this Federal Register 
notice.
    Non-timely 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

[[Page 19602]]

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).
    The Commission hereby provides 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. 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.
    For further details with respect to this application, see the 
application dated December 21, 2001, which is available for public 
inspection at the Commission's Public Document Room, One White Flint 
North Building, 11555 Rockville Pike, Rockville, MD or from the 
publicly available records component of NRC's document system (ADAMS). 
ADAMS is accessible from the NRC Web site at http://www.nrc.gov/reading-rm/adams.html (the Public Electronic Reading Room). Persons who 
do not have access to ADAMS or who encounter problems in accessing the 
documents located in ADAMS, should contact the NRC PDR Reference staff 
by telephone at 1-800-397-4209, 301-415-4737 or by e-mail to 
[email protected].

    Dated at Rockville, Maryland, this 12th day of April 2002.

    For the Nuclear Regulatory Commission,
 E. William Brach,
Director, Spent Fuel Project Office, Office of Nuclear Material Safety 
and Safeguards.
[FR Doc. 02-9731 Filed 4-19-02; 8:45 am]
BILLING CODE 7590-01-P