[Federal Register Volume 69, Number 25 (Friday, February 6, 2004)]
[Notices]
[Pages 5873-5879]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-2550]
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NUCLEAR REGULATORY COMMISSION
[Docket No. 70-3103; CLI-04-03]
In the Matter of Louisiana Energy Services, L.P. (National
Enrichment Facility); Notice of Receipt of Application for License;
Notice of Availability of Applicant's Environmental Report; Notice of
Consideration of Issuance of License; and Notice of Hearing and
Commission Order
Commissioners: Nils J. Diaz, Chairman, Edward McGaffigan, Jr.,
Jeffrey S. Merrifield.
I. Receipt of Application and Availability of Documents
Notice is hereby given that the U.S. Nuclear Regulatory Commission
(NRC or the Commission) received on December 15, 2003, an application,
safety analysis report, and environmental report from Louisiana Energy
Services, L.P. (LES), for a license to possess and use source,
byproduct, and special nuclear material and to enrich natural uranium
to a maximum of 5 percent U-235 by the gas centrifuge process. The
plant, to be known as the National Enrichment Facility (or NEF), would
be constructed in Eunice, New Mexico. LES is a limited Partnership
whose general Partners are Urenco Investments, Inc. (a subsidiary of
Urenco, Ltd.) and Westinghouse Enrichment Company. In addition, there
are six limited Partners.
Copies of LES's application, safety analysis report, and
environmental report (except for portions thereof subject to
withholding from public inspection in accordance with 10 CFR 2.390,
Availability of Public Records) are available for public inspection at
the Commission's Public Document Room (PDR) at One White Flint North,
11555 Rockville Pike, Rockville, Maryland 20852. These documents are
also available for review and copying using any of the following
methods: (1) Enter the NRC's Gas Centrifuge Enrichment Facility
Licensing Web site at http://www.nrc.gov/materials/fuel-cycle-fac/gas-centrifuge.html#correspondence; (2) enter the NRC's Agency wide
Document Access and Management System (ADAMS) at http://www.nrc.gov/NRC/ADAMS/index.htm, where the accession number for LES's application
(including LES's safety analysis report and LES's environmental report)
is ML040020261; or (3) contact the NRC's Public Document Room (PDR) by
calling (800) 397-4209, faxing a request to (301) 415-3548, or sending
a request by electronic mail to [email protected]. Hard copies of the
documents are available from the PDR for a fee.
The NRC has now accepted LES's application for docketing and
accordingly is providing this notice of hearing and notice of
opportunity to intervene on LES's application for a license to
construct and operate a centrifuge enrichment facility. Pursuant to the
Atomic Energy Act of 1954, as amended, (Act) the NRC staff will prepare
a safety evaluation report after reviewing the application and making
findings concerning the public health and safety and common defense and
security. In addition, pursuant to the National Environmental Policy
Act of 1969 (NEPA) and the Commission's regulations in 10 CFR part 51,
NRC will complete an environmental evaluation and prepare an
environmental impact statement (EIS) before the hearing on the issuance
of a license is completed. The preparation of the EIS will be the
subject of a separate notice in the Federal Register.
When available, the NRC staff's safety evaluation and its EIS
(except for portions thereof subject to withholding from public
inspection in accordance with 10 CFR 2.390) will also be placed in the
PDR and in ADAMS. Copies of correspondence between the NRC and LES, and
transcripts of prehearing conferences and hearings (except for portions
thereof subject to withholding from public inspection in accordance
with 10 CFR 2.390) will be similarly made available to the public.
If following the hearing, the Commission is satisfied that LES has
complied with the Commission's regulations and the requirements of this
Notice and Commission Order and the Commission finds that the
application satisfies the applicable standards set
[[Page 5874]]
forth in 10 CFR 30.33, 40.32, and 70.23, a single license will be
issued authorizing: (1) The receipt, possession, use, delivery, and
transfer of byproduct (e.g., calibration sources), source, and special
nuclear material in the National Enrichment Facility; and (2) the
construction and operation of the National Enrichment Facility. Prior
to commencement of operations of the National Enrichment Facility if it
is licensed, in accordance with section 193(c) of the Act and 10 CFR
70.32(k), NRC will verify through inspection that the facility has been
constructed in accordance with the requirements of the license for such
construction and operation. The inspection findings will be published
in the Federal Register.
II. Notice of Hearing
A. Pursuant to 10 CFR 70.23a and Section 193 of the Atomic Energy
Act of 1954, as amended (Act), as amended by the Solar, Wind, Waste,
and Geothermal Power Production Incentives Act of 1990 (Pub. L. 101-
575), a hearing will be conducted according to the rules of procedure
in new 10 CFR part 2, subparts A, C, G, and to the extent that
classified information becomes involved, subpart I (final rule
published at 69 FR 2182, January 14, 2004).\1\ The hearing will be held
under the authority of sections 53, 63, 189, 191, and 193 of the Act.
The applicant and NRC staff shall be parties to the proceeding.
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\1\ By its terms, the new 10 CFR part 2 applies to licensing
actions the notice of hearing for which was issued on or after the
effective date of the new rule, February 13, 2004. See 69 FR 2182.
By this order, the Commission directs the application of the new 10
CFR part 2 for the LES Proceeding. Accordingly, references in this
Notice and Order are to the new 10 CFR part 2.
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B. Pursuant to 10 CFR part 2, Subpart C, the hearing shall be
conducted by an Atomic Safety and Licensing Board (Board) appointed by
the Chief Administrative Judge of the Atomic Safety and Licensing Board
Panel. Notice as to the membership of the Board will be published in
the Federal Register at a later date.
C. The matters of fact and law to be considered are whether the
application satisfies the standards set forth in this Notice and
Commission Order and the applicable standards in 10 CFR 30.33, 40.32,
and 70.23, and whether the requirements of 10 CFR part 51 have been
met.
D. If this proceeding is not a contested proceeding, as defined by
10 CFR 2.4, the Board will determine the following, without conducting
a de novo evaluation of the application: (1) Whether the application
and record of the proceeding contain sufficient information and whether
the NRC staff's review of the application has been adequate to support
findings to be made by the Director of the Office of Nuclear Materials
Safety and Safeguards, with respect to the matters set forth in
paragraph C of this section, and (2) whether the review conducted by
the NRC staff pursuant to 10 CFR part 51 has been adequate.
E. Regardless of whether the proceeding is contested or
uncontested, the Board will, in its initial decision, in accordance
with Subpart A of part 51: Determine whether the requirements of
sections 102(2) (A), (C), and (E) of NEPA and Subpart A of part 51 have
been complied with in the proceeding; independently consider the final
balance among conflicting factors contained in the record of proceeding
with a view to determining the appropriate action to be taken; and
determine whether a license should be issued, denied, or conditioned to
protect the environment.
F. If the proceeding becomes a contested proceeding, the Board
shall make findings of fact and conclusions of law on admitted
contentions. With respect to matters set forth in paragraph C of this
section but not covered by admitted contentions, the Board will make
the determinations set forth in paragraph D without conducting a de
novo evaluation of the application.
G. By April 6, 2004, 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 petition for leave to intervene.
Petitions for leave to intervene shall be filed in accordance with the
provisions of 10 CFR 2.309. Interested persons should consult the new
10 CFR part 2, section 2.309 (69 FR 2182, 2238), which is available at
the NRC's PDR, located at One White Flint North, 11555 Rockville Pike
(first floor), Rockville, MD (or call the PDR at (800) 397-4209 or
(301) 415-4737). NRC regulations are also accessible electronically
from the NRC's Electronic Reading Room on the NRC Web site, at http://www.nrc.gov. If a petition for leave to intervene is filed by the above
date, the Commission will issue an order determining standing and refer
petitions from persons with the requisite standing to the Atomic Safety
and Licensing Board for further processing in the proceeding.
As required by 10 CFR 2.309, 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 must provide the name, address, and
telephone number of the petitioner and 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.
A petition for leave to intervene must also include a specification
of the contentions that the petitioner seeks to have litigated in the
hearing. For each contention, the petitioner must provide a specific
statement of the issue of law or fact to be raised or controverted, as
well as a brief explanation of the basis for the contention.
Additionally, the petition must demonstrate that the issue raised by
each contention is within the scope of the proceeding and is material
to the findings the NRC must make to support the granting of a license
in response to LES's application. The petition must also include a
concise statement of the alleged facts or expert opinions which support
the position of the petitioner and on which the petitioner intends to
rely at hearing, together with references to the specific sources and
documents on which the petitioner intends to rely. Finally, the
petition must provide sufficient information to show that a genuine
dispute exists with the applicant on a material issue of law or fact,
including references to specific portions of the application that the
petitioner disputes and the supporting reasons for each dispute, or, if
the petitioner believes that the application fails to contain
information on a relevant matter as required by law, the identification
of each failure and the supporting reasons for the petitioner's belief.
Each contention must be one that, if proven, would entitle the
petitioner to relief.
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 with respect to resolution of that person's admitted
contentions, including the opportunity to present evidence and to
submit a cross-examination plan for cross-examination of witnesses,
consistent with NRC regulations, policies, and procedures. The Board
will set the time and place for any prehearing conferences and
evidentiary hearings, and the respective notices will be published in
the Federal Register.
A petition for leave to intervene and proffered contentions must be
filed with
[[Page 5875]]
the Secretary of the Commission, U.S. Nuclear Regulatory Commission,
Washington, DC 20555-0001, Attention: Rulemaking and Adjudications
Staff, or may be delivered to the Commission's PDR, located at One
White Flint North, 11555 Rockville Pike (first floor), Rockville,
Maryland, 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 20555-0001,
Attention: Associate General Counsel for Hearings, Enforcement, and
Administration, 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
James Curtiss, Esq., Winston & Strawn, 1400 L Street, Washington, DC
20005-3502, attorney for the applicant.
Non-timely filings of petitions for leave to intervene, amended
petitions, and supplemental petitions will not be entertained absent a
determination by the Commission or the Atomic Safety and Licensing
Board that the petition should be granted, based upon a balancing of
the factors specified in 10 CFR 2.309(c)(1)(i)-(viii).
H. A State, county, municipality, Federally-recognized Indian
Tribe, or agencies thereof, may submit a petition to the Commission to
participate as an interested entity under 10 CFR 2.309(d)(2). The
petition should state the nature and extent of the petitioner's
interest in the proceeding. The petition should be submitted to the
Commission by April 6, 2004. The petition must be filed in accordance
with the filing instructions in paragraph G, above, for petitions
submitted under 10 CFR 2.309, except that State and Federally
recognized Indian tribes do not need to address the standing
requirements in 10 CFR 2.309(d)(1). The Commission will rule on
petitions filed under 10 CFR 2.309(d)(2). The entities listed above
could also seek to participate in a hearing as a non-party pursuant to
10 CFR 2.315(c).
I. Any person who does not wish, or is not qualified, to become a
party to this proceeding may request permission to make a limited
appearance pursuant to the provisions of 10 CFR 2.315(a). A person
making a limited appearance may make an oral or written statement of
position on the issues, but may not otherwise participate in the
proceeding. A limited appearance may be made at any session of the
hearing or at any prehearing conference, subject to such limits and
conditions as may be imposed by the Board. Persons desiring to make a
limited appearance are requested to inform the Secretary of the
Commission by April 6, 2004.
III. Commission Guidance
A. Contentions on Environmental Justice
The Commission will make the determination as to whether
contentions associated with environmental justice matters will be
admitted in this proceeding. Parties responding to such contentions
pursuant to 10 CFR 2.309(h) shall submit their answers to the
Commission's Secretary as noted above with copies to the other parties
and Board. The Commission itself will rule on the admissibility of such
contentions and provide appropriate guidance on the litigation of such
contentions.
B. Presiding Officer Determination of Contentions
For contentions other than environmental justice (addressed in
III.A. above), the presiding officer shall issue a decision on the
admissibility of contentions no later than sixty (60) days after the
petitions and contentions are referred to the ASLB.
C. Novel Legal Issues
If rulings on the admissibility of contentions or the admitted
contentions themselves raise novel legal or policy questions, the
Commission will provide early guidance and direction on the treatment
and resolution of such issues. Accordingly, the Commission directs the
Board to promptly certify to the Commission in accordance with 10 CFR
2.319(l) and 2.323(f) all novel legal or policy issues that would
benefit from early Commission consideration should such issues arise in
this proceeding.
D. Discovery Management
(1) All parties, except the NRC staff, shall make the mandatory
disclosures required by 10 CFR 2.704 within forty-five (45) days of the
issuance of the order admitting that contention.
(2) The presiding officer, consistent with fairness to all parties,
should narrow the issues requiring discovery and limit discovery to no
more than one round for admitted contentions.
(3) All discovery against the Staff shall be governed by 10 CFR
2.336(b) and 2.709. The Staff shall comply with 10 CFR 2.336(b) no
later than 30 days after the ASLB order admitting contentions and shall
update the information at the same time as the issuance of the Safety
Evaluation Report (SER) or the Final Environmental Impact Statement
(FEIS). Discovery under 10 CFR 2.709 shall not commence until the
issuance of the particular document, i.e., SER or EIS, unless the ASLB
in its discretion finds that commencing discovery against the Staff on
safety issues before the SER is issued, or on environmental issues
before the FEIS is issued will expedite the hearing without adversely
impacting the Staff's ability to complete its evaluations in a timely
manner.
(4) No later than 30 days before the commencement of the hearing at
which an issue is to be presented, all parties other than the Staff
shall make the pretrial disclosures required by 10 CFR 2.704(c).
E. Hearing Schedule
The Commission believes that a reasonably-achievable schedule would
result in a final NRC decision on the pending application within about
two and a half years of the date the application was received, and the
Commission thus will impose a 30-month milestone schedule for this
proceeding. The Commission recognizes, however, that legislation
currently being considered would require the NRC to issue decisions on
new enrichment facility applications within two years of receipt of the
application; consequently, the Commission will endeavor to identify
efficiencies, and provide the pertinent resources, to further reduce
the time the agency needs to complete reviews and reach decisions in
licensing uranium enrichment facilities.
In the interest of providing a fair hearing, avoiding unnecessary
delays in the NRC's review and hearing process, and producing an
informed adjudicatory record that supports the licensing determination
to be made in this proceeding, the Commission directs that both the
Atomic Safety and Licensing Board and the NRC staff, as well as the
applicant and other parties to this proceeding, follow the applicable
requirements contained in the new 10 CFR part 2 and the guidance in the
Commission's Statement of Policy on Conduct of Adjudicatory
Proceedings, CLI-98-12, 48 NRC 18 (1998) [63 FR 41872 (August 5, 1998)]
to the extent that such guidance is not inconsistent with specific
guidance in this Order.
[[Page 5876]]
The guidance in the Statement of Policy on Conduct of Adjudicatory
Proceedings is intended to improve the management and the timely
completion of the proceeding and addresses hearing schedules, parties'
obligations, contentions, and discovery management. Consistent with
that guidance, the Commission directs the Licensing Board to
expeditiously decide legal and policy issues that may resolve threshold
issues or expedite this proceeding. Threshold environmental legal and
policy issues need not await issuance of the final EIS. In addition,
the Commission is providing the following direction for this
proceeding:
(1) The Commission directs the Licensing Board to set a schedule
for the hearing in this proceeding consistent with this order that
establishes as a goal the issuance of a final Commission decision on
the pending application within two and a half years (30 months) from
the date that the application was received. Formal discovery against
the Staff shall be suspended until after the Staff completes its final
SER and EIS in accordance with the direction provided in paragraph
D.(3), above.
(2) The evidentiary hearing with respect to issues should commence
promptly after completion of the final staff documents (SER or EIS)
unless the Licensing Board in its discretion finds that starting the
hearing with respect to one or more safety issues prior to issuance of
the final SER \2\ (or one or more environmental contentions directed to
the applicant's Environmental Report) will expedite the proceeding
without adversely impacting the Staff's ability to complete its
evaluations in a timely manner.
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\2\ The Commission believes that, in the appropriate
circumstances, allowing discovery or an evidentiary hearing with
respect to safety-related issues to proceed before the final SER is
issued will serve to further the Commission's objective, as
reflected in the Statement of Policy on Conduct of Adjudicatory
Proceedings, CLI-98-12, supra, to ensure a fair, prompt, and
efficient resolution of contested issues. For example, it may be
appropriate for the Licensing Board to permit discovery against the
staff and/or the commencement of an evidentiary hearing with respect
to safety issues prior to the issuance of the final SER in cases
where the applicant has responded to the Staff's ``open items'' and
there is an appreciable lag time until the issuance of the final
SER, or in cases where the initial SER identifies only a few open
items.
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(3) The Commission also believes that issuing a decision on the
pending application within about two and a half years may be reasonably
achieved under the rules of practice contained in the new 10 CFR part 2
and the enhancements directed by this order. We do not expect the
Licensing Board to sacrifice fairness and sound decision-making to
expedite any hearing granted on this application. We do expect,
however, the Licensing Board to use the techniques specified in this
order and in the Commission's policy statement on the conduct of
adjudicatory proceedings (CLI-98-12, supra) to ensure prompt and
efficient resolution of contested issues. See also Statement of Policy
on Conduct of Licensing Proceedings, CLI-81-8, 13 NRC 452 (1981).
(4) If this is a contested proceeding, the Board should adopt the
following milestones, in developing a schedule, for conclusion of
significant steps in the adjudicatory proceeding: \3\
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\3\ This schedule assumes that the SER and Final EIS are issued
essentially at the same time. If these documents are not to be
issued very close in time, the Board should adopt separate schedules
but concurrently running for the safety and environmental reviews
consistent with the time frames herein for each document.
Within 10 days of the Commission's Persons found to have standing
order determining standing and or entities participating
admission of any environmental justice under 10 CFR 2.309(d) may
contentions: submit a motion for
reconsideration (see, below,
at Section IV.B).*
Within 20 days of the Commission's Persons found to have standing
order determining standing: or entities participating
under 10 CFR 2.309(d) may
respond to any motion for
reconsideration.
Within 60 days of the Commission's ASLB decision on admissibility
order determining standing and of remaining contentions.
referring the petition and contentions
to the ASLB:
Within 30 days of the ASLB decision Staff prepares hearing file.
determining admission of contentions:
Within 90 days of the ASLB decision Completion of discovery on
determining admission of contentions:. admitted contentions, except
against the Staff (including
contentions on environmental
issues arising under NEPA).
Within 110 days of the ASLB decision Deadline for summary
determining admission of contentions: disposition motions on
admitted contentions.**
Within 150 days of the ASLB decision ASLB decision on summary
determining admission of contentions: disposition motions on
admitted contentions.
Date of issuance of final SER/EIS: Staff updates hearing file.
Within 20 days of the issuance of final Motions to amend contentions;
SER/EIS: motions for late-filed
contentions.
Within 40 days of the issuance of final Completion of answers and
SER/EIS: replies to motions for amended
and late-filed contentions.
Within 50 days of the issuance of final ASLB decision on admissibility
SER/EIS: of late-filed contentions;
deadline for summary
disposition motions on
remaining admitted
contentions.***
Within 80 days of the issuance of final Completion of discovery on late-
SER/EIS: filed contentions; ASLB
decision on summary
disposition motions on
remaining contentions.
Within 90 days of the issuance of final Direct testimony filed on
SER/EIS: remaining contentions and any
amended or admitted late-filed
contentions.
Within 100 days of the issuance of Cross-examination plans filed
final SER/EIS: on remaining contentions and
any amended or admitted late-
filed contentions.
Within 105 days of the issuance of Evidentiary hearing begins on
final SER/EIS: remaining contentions and any
amended or admitted late-filed
contentions.
Within 135 days of the issuance of Completion of evidentiary
final SER/EIS: hearing on remaining
contentions and any amended or
admitted late-filed
contentions.
Within 180 days of the issuance of Completion of findings and
final SER/EIS: replies.
Within 240 days of the issuance of ASLB's initial decision.
final SER/EIS:
* Motions for reconsideration do not stay this schedule.
** The schedule presumes that a prehearing conference order would
establish the deadline for filing of summary disposition motions 20
days after close of discovery consistent with 10 CFR 2.710(a), answers
to be filed 10 days after filing of any motion, replies to be filed 10
days after any answer, and the ASLB to issue a decision on any summary
disposition motion 20 days thereafter.
*** No summary disposition motions on late-filed contentions are
contemplated.
[[Page 5877]]
To meet these milestones, the Licensing Board should direct the
participants to serve all filings by electronic mail (in order to be
considered timely, such filings must be received by the Licensing Board
and parties no later than midnight Eastern Time on the date due, unless
otherwise designated by the Licensing Board), followed by conforming
hard copies that may be sent by regular mail. If participants do not
have access to electronic mail, the Licensing Board should adopt other
expedited methods of service, such as express mail, which would ensure
receipt on the due date (``in-hand''). If pleadings are filed by
electronic mail, or other expedited methods of service which would
ensure receipt on the due date, the additional period provided in our
regulations for responding to filings served by first-class mail or
express delivery shall not be applicable. See 10 CFR 2.306.
In addition, to avoid unnecessary delays in the proceeding, the
Licensing Board should not grant requests for extensions of time absent
unavoidable and extreme circumstances. Although summary disposition
motions are included in the schedule above, the Licensing Board shall
not entertain motions for summary disposition under 10 CFR. 2.710,
unless the Licensing Board finds that such motions are likely to
expedite the proceeding. Unless otherwise justified, the Licensing
Board shall provide for the simultaneous filing of answers to proposed
contentions, responsive pleadings, proposed findings of fact, and other
similar submittals.
(5) Parties are obligated in their filings before the Licensing
Board and the Commission to ensure that their arguments and assertions
are supported by appropriate and accurate references to legal authority
and factual basis, including, as appropriate, citation to the record.
Failure to do so may result in material being stricken from the record
or, in extreme circumstances, in a party being dismissed from the
proceeding.
(6) The Commission directs the Licensing Board to inform the
Commission promptly, in writing, if the Licensing Board determines that
any single milestone could be missed by more than 30 days. The
Licensing Board must include an explanation of why the milestone cannot
be met and the measures the Licensing Board will take to mitigate the
failure to achieve the milestone and restore the proceeding to the
overall schedule.
F. Commission Oversight
As in any proceeding, the Commission retains its inherent
supervisory authority over the proceeding to provide additional
guidance to the Licensing Board and participants and to resolve any
matter in controversy itself.
IV. Applicable Requirements
A. The Commission will license and regulate byproduct, source, and
special nuclear material at the National Enrichment Facility in
accordance with the Atomic Energy Act of 1954, as amended. Section
274c.(1) of the Act was amended by Public Law 102-486 (October 24,
1992) to require the Commission to retain authority and responsibility
for the regulation of uranium enrichment facilities. Therefore, in
compliance with law, the Commission will be the sole licensing and
regulatory agency with respect to byproduct, source, and special
nuclear material for the National Enrichment Facility, and with respect
to the control and use of any equipment or device in connection
therewith.
Many rules and regulations in 10 CFR chapter I are applicable to
the licensing of a person to receive, possess, use, transfer, deliver,
and process byproduct, source and special nuclear material in the
quantities that would be possessed at the National Enrichment Facility.
These include 10 CFR parts 19, 20, 21, 25, 30, 40, 51, 70, 71, 73, 74 ,
95, 140, 170, and 171 for the licensing and regulation of byproduct,
source, and special nuclear material, including requirements for
notices to workers, reporting of defects, radiation protection, waste
disposal, decommissioning funding, and insurance.
With respect to these regulations, the Commission notes that this
is the second proceeding involving the licensing of an enrichment
facility. The Commission issued a number of decisions in an earlier
proceeding regarding a proposed site in Homer, Louisiana. These final
decisions, Louisiana Energy Services (Claiborne Enrichment Center),
CLI-92-7, 35 NRC 93 (1992); Louisiana Energy Services (Claiborne
Enrichment Center), CLI-97-15, 46 NRC 294 (1997); and Louisiana Energy
Services (Claiborne Enrichment Center), CLI-98-3, 47 NRC 77 (1998),
resolve a number of issues concerning uranium enrichment licensing and
may be relied upon as precedent.
Consistent with the Atomic Energy Act of 1954, as amended, and the
Commission's regulations, the Commission is providing the following
direction for licensing uranium enrichment facilities:
1. Environmental Issues
(a) General: 10 CFR part 51 governs the preparation of an
environmental report and an environmental impact statement (EIS) for a
materials license. LES's environmental report and the NRC staff's
associated EIS are to include a statement on the alternatives to the
proposed action, including a discussion of the no-action alternative.
(b) Treatment of depleted uranium hexafluoride tails: As to the
treatment of the disposition of depleted uranium hexafluoride tails
(depleted tails) in these environmental documents, unless LES
demonstrates a use for the uranium in the depleted tails as a potential
resource, the depleted tails may be considered waste. In addition, if
such waste meets the definition of ``waste'' in 10 CFR 61.2, the
depleted tails are to be considered low-level radioactive waste within
the meaning of 10 CFR part 61 in which case an approach by LES to
transfer to DOE for disposal by DOE of LES'' depleted tails pursuant to
Section 3113 of the USEC Privatization Act constitutes a ``plausible
strategy'' for dispositioning the LES depleted tails. The NRC staff may
consider the DOE EIS in preparing the staff's EIS. Alternatives for the
disposition of depleted uranium tails will need to be addressed in
these documents. As part of the licensing process, LES must also
address the health, safety, and security issues associated with the
storage of depleted uranium tails on site pending removal of the tails
from the site for disposal or DOE dispositioning.
(c) Environmental Justice: As to environmental justice matters,
past Commission decisions are relevant precedent. These include
Louisiana Energy Services (Claiborne Enrichment center), CLI-98-3, 47
NRC 77 (1998) and Private Fuel Storage, L.L.C. (Independent Spent Fuel
Storage Installation), CLI-02-20, 56 NRC 147 (2002) that limit
treatment of certain issues in NRC proceedings. In addition, the
Commission notes that it recently issued for comment a draft Policy
Statement on the Treatment of Environmental Justice Matters in NRC
Regulatory and Licensing Actions, 68 FR 62642 (November 5, 2003). As
noted above in Section III, the admissibility of proffered
environmental justice contentions will be determined by the Commission.
2. Financial Qualifications
Review of financial qualifications for enrichment facility license
applications is governed by 10 CFR part 70. In Louisiana Energy
Services (Claiborne Enrichment Center), CLI-97-15, 46 NRC
[[Page 5878]]
294, 309 (1997), the Commission held that the part 70 financial
criteria, 10 CFR 70.22(a)(8) and 70.23(a)(5), could be met by
conditioning the LES license to require funding commitments to be in
place prior to construction and operation. The specific license
condition approved in that proceeding, which addressed a minimum equity
contribution of 30% from the parents and affiliates of LES partners
prior to construction of the associated capacity and having in place
long term enrichment contracts with prices sufficient to cover both
construction and operating costs, including a return on investment, for
the entire term of the contracts prior to constructing or operating the
facility, is one way to satisfy the requirements of part 70.
3. Antitrust Review
The LES enrichment facility is subject to licensing pursuant to
sections 53 and 63 of the Atomic Energy Act (Act), and is not a
production and utilization facility licensed under section 103.
Consequently the NRC does not have antitrust responsibilities for LES
similar to the antitrust responsibilities under section 105 of the Act.
The NRC will not entertain or consider antitrust issues in connection
with the LES application in this proceeding.
4. Foreign Ownership
The LES application is governed by sections 53 and 63 of the Act,
and consequently issues of foreign involvement shall be determined
pursuant to section 57 and not section 103, 104 or 193(f). Section 57
of the Act requires, among other things, an affirmative finding by the
Commission that issuance of a license for NEF will not be ``inimical to
the common defense and security.''
5. Creditor Requirements
Pursuant to section 184 of the Act, the creditor regulations in 10
CFR 50.81 shall apply to the creation of creditor interests in
equipment, devices, or important component parts thereof, capable of
separating the isotopes of uranium or enriching uranium in the isotope
U 235. In addition, the creditor regulations in 10 CFR 70.44
shall apply to the creation of creditor interests in special nuclear
material. These creditor regulations may be augmented by license
conditions as necessary to allow ownership arrangements (such as sale
and leaseback) not covered by 10 CFR 50.81, provided it can be found
that such arrangements are not inimical to the common defense and
security of the United States.
6. Classified Information
All matters of classification of information related to the design,
construction, operation, and safeguarding of the NEF shall be governed
by classification guidance in ``Joint NRC/DOE Classification Guide for
Louisiana Energy Services Gas Centrifuge Plant (CG-LCP-1)'' (1992)
(Confidential--Restricted data) and any later versions. Any person
producing such information must adhere to the criteria in CG-LCP-1. All
decisions on questions of classification or declassification of
information shall be made by appropriate classification officials in
the NRC and are not subject to de novo review in this proceeding.
7. Access to Classified Information Pursuant to 10 CFR Part 25
Portions of LES' application for a license are classified
Restricted Data or National Security Information. Persons needing
access to those portions of the application will be required to have
the appropriate security clearance for the level of classified
information to which access is required. Access to certain classified
Third Agency or Foreign Government Information may be subject to
special controls and require the prior approval of the Director,
Division of Nuclear Security, NSIR. Access requirements apply equally
to intervenors, their witnesses and counsel, employees of the
applicant, its witnesses and counsel, NRC personnel, and others. Any
person who believes that he or she will have a need for access to
classified information for the purpose of this licensing proceeding,
including the hearing, should immediately contact the U.S. Nuclear
Regulatory Commission, Division of Facilities and Security, ADM,
Washington, DC 20555, for information on the clearance process.
Telephone calls may be made to Cheryl M. Stone, Chief, Security Branch.
Telephone: (301) 415-7404.
8. Obtaining NRC Security Facility Approval and for Safeguarding
Classified Information Received or Developed Pursuant to 10 CFR Part 95
Any person who requires possession of classified information in
connection with the licensing proceeding may process, store, reproduce,
transmit, or handle classified information only in a location for which
facility security approval has been obtained from the NRC's Division of
Nuclear Security, NSIR, Washington, DC 20555. Telephone calls may be
made to A. Lynn Silvious, Chief, Information Security Section.
Telephone: (301) 415-2214.
B. Reconsideration: The above guidance does not foreclose the
applicant, any person admitted as a party to the hearing, or an entity
participating under 10 CFR 2.315(c) from litigating material factual
issues necessary for resolution of contentions in this proceeding.
Persons found by the Commission to have standing and entities
participating under 10 CFR 2.315(c) as of the date of the Commission's
order on standing may also move the Commission to reconsider any
portion of Section IV of this Notice and Commission Order where there
is no clear Commission precedent or unambiguously governing statutes or
regulations. Any motion to reconsider must be filed within 10 days
after the Commission's order on standing. The motion must contain all
technical or other arguments to support the motion. Other persons
granted standing and entities participating under 10 CFR 2.315(c),
including the applicant and the NRC staff, may respond to motions for
reconsideration within 20 days of the Commission's Order. Motions will
be ruled upon by the Commission. A motion for reconsideration does not
stay the schedule set out above in section III.E.(4). However, if the
Commission grants a motion for reconsideration, it will, as necessary,
provide direction on adjusting the hearing schedule.
V. Pending Energy Legislation
The Energy Policy Act of 2003, H.R. 6, is currently pending in
Congress. H.R. 6, as currently constituted, contains provisions that
address the manner in which certain issues are to be dealt with and a
schedule for overall Commission consideration of an application for
licensing a uranium enrichment facility. In the event that H.R. 6 is
enacted, the Commission may need to issue an additional order to
conform guidance and schedules for the LES application to any new
statutory requirements.
VI. Notice of Intent Regarding Classified Information
As noted above, a hearing on this application will be governed by
the new 10 CFR part 2, Subparts A, C, G, and to the extent classified
material becomes involved, Subpart I. Subpart I requires in accordance
with 10 CFR 2.907 that the NRC staff file a notice of intent if, at the
time of publication of Notice of Hearing, it appears that it will be
impracticable for the staff to avoid the introduction of Restricted
Data or National Security Information into a proceeding. The applicant
has submitted portions of its application
[[Page 5879]]
that are classified. The Commission notes that, since the entire
application becomes part of the record of the proceeding, the NRC staff
has found it impracticable for it to avoid the introduction of
Restricted Data or National Security Information into the proceeding.
It is so ordered.
Dated at Rockville, Maryland, this 30th day of January, 2004.
For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. 04-2550 Filed 2-5-04; 8:45 am]
BILLING CODE 7590-01-P