[Federal Register Volume 69, Number 133 (Tuesday, July 13, 2004)]
[Notices]
[Pages 42073-42074]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-15788]
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NUCLEAR REGULATORY COMMISSION
[Docket No. PAPO-00]
Commissioners: Nils J. Diaz, Chairman, Edward McGaffigan, Jr.,
Jeffrey S. Merrifield; In the Matter of U.S. Department of Energy (High
Level Waste Repository: Pre-Application Matters); CLI-04-20; Order
The Commission has promulgated regulations, found in 10 CFR part 2,
subpart J, which, among other things, provide for the use of an
electronic information management system to make documents available to
the participants in any eventual licensing proceeding on a high-level
radioactive waste repository. Requiring participants to place pertinent
documents into the Licensing Support Network (LSN) for use by the other
participants obviates the need for the traditional means of document
discovery and will allow potential parties to use some part of the pre-
application period to review documentary information and prepare
contentions for filing in petitions to intervene. In promulgating its
regulations, the Commission recognized that there is a potential for
disputes among the participants regarding document withholding from the
LSN.
Section 2.1010 of subpart J requires that the Commission designate
an official to rule on those disputes, a Pre-License Application
Presiding Officer (PAPO). Subpart J defines the PAPO as ``one or more
members of the Commission, or an atomic safety and licensing board
(ASLB), or a named officer who has been delegated final authority in
the pre-license application phase with jurisdiction specified at the
time of designation.'' 10 CFR 2.1010(a)(1). That official is to be
designated no later than fifteen days after the Department of Energy
(DOE)--the potential applicant for a license authorizing construction
of a high-level radioactive waste repository--provides a written
certification to the NRC pursuant to 10 CFR 2.1009(b) that DOE has
identified the pertinent documentary information and made it
electronically available.\1\ DOE provided that certification to NRC on
June 30, 2004. The purpose of this order is to designate a PAPO and set
forth the jurisdiction of that official.
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\1\ We note receipt of a June 2, 2004, letter from counsel for
the State of Nevada requesting the Commission ``to appoint a Pre-
Application Presiding Officer immediately.'' This Order addresses
that request.
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Designation of the PAPO
The Commission hereby designates the Chief Administrative Judge of
the Atomic Safety and Licensing Board Panel, G. Paul Bollwerk, III, as
the PAPO. As set forth below, he is authorized to delegate that
authority.
PAPO's Powers and Jurisdiction
The Commission authorizes the PAPO to delegate his authority in
whole or in part to any member or members of the Atomic Safety and
Licensing Board Panel to serve singly or jointly on one or more boards.
Pursuant to 10 CFR 2.1010(e), the PAPO possesses all the general
powers specified in Sec. 2.319 and Sec. 2.321(c) that the PAPO
requires to carry out its responsibilities. As provided by 10 CFR
2.1010(a)(1) and (b), the PAPO is granted this authority solely for the
purpose of ruling on disputes over the electronic availability of
documents, including disputes relating to claims of privilege and those
relating to the implementation of recommendations of the Advisory
Review Panel established under Sec. 2.1011(d). Pursuant to Sec.
2.1010(b), the PAPO shall rule on any claim of document withholding
except as otherwise provided in this order or subsequent order of the
Commission. In 10 CFR 2.1005, the Commission has delineated classes of
documents that are to be excluded from the LSN. The Commission calls
attention to recent changes to that section of the regulations. See 69
FR 32836 (June 14,
[[Page 42074]]
2004). No issue lacking a direct relation to the LSN is to be
entertained by the PAPO.
The Commission's interest is in assuring the availability of
information and not in dissipating resources on meaningless disputes.
The PAPO possesses authority under 10 CFR 2.1010(e) and 2.319 to
restrict irrelevant, unreliable, duplicative or cumulative arguments
and to regulate the course of the proceedings and the conduct of the
participants. The Commission expects the PAPO to use this authority to
ensure a fair and impartial process.
Clarification Regarding Appeals of PAPO Actions
Although 10 CFR 2.1010(a)(1) refers to ``a named officer who has
been delegated final authority on the matter to serve as the [PAPO]''
(underlining added), a right of appeal from a PAPO order issued under
10 CFR 2.1010 is recognized under Sec. 2.1015(b). A notice of appeal,
accompanied by a supporting brief, must be filed with the Commission no
later than ten days after service of the order in accordance with 10
CFR 2.1015.
Termination of Jurisdiction
The jurisdiction of the PAPO shall terminate at the time that an
Atomic Safety and Licensing Board has been appointed to preside over
the high-level waste repository licensing proceeding,\2\ the Chief
Administrative Judge of the Atomic Safety and Licensing Board Panel or
the Commission rules otherwise, the PAPO shall retain jurisdiction over
those disputes pending before it at the time a Licensing Board has been
appointed for the high level waste repository licensing proceeding.
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\2\ The Commission expects that none of the one or more Atomic
Safety and Licensing Boards that may be needed for such proceeding
will be appointed until after DOE files an application, the
application has been docketed by the NRC staff, a Notice of
Opportunity for Hearing has been published by the NRC, and at least
one person has filed a petition to intervene and request a hearing.
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Application of Ex Parte and Separation of Functions Rules
The ex parte and separation of function rules (10 CFR 2.347 and
2.348 respectively) shall apply to those limited matters falling within
the PAPO's jurisdiction and to appeals to the Commission of PAPO
rulings.
Technical Requirements for Legal Filings
An addendum to the order discusses and displays how the
participants shall caption any filing seeking a ruling or other action
from the PAPO. The caption includes, as will be noted, both the
identification of the originator of the request and the number of the
request by that particular originator. Subsequent responses and any
other related papers should carry the same caption. This will aid
electronic retrieval of the documents and facilitate identification of
filings and rulings on any specified dispute.
Other requirements governing submissions shall be as the part 2
rules provide unless the PAPO or the Commission provides otherwise.
It is so ordered.
Dated in Rockville, Maryland, this 7th day of July, 2004.
For the Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
Addendum to CLI-O4-20
The caption used on the above Order appointing a PAPO should be
used for all filings with the PAPO.
Beneath the caption, the participant shall number each of its
requests for action by the PAPO. Thus, for example, a participant's
first request should be numbered [name of participant]-01. Its
second request will be numbered [name of participant]-02. By
requiring each of the participants to number its requests, it will
make it easy for the PAPO and the participants to refer to the
various requests.
Thus were a participant to file a request, its first filing
would read as follows:
U.S. Dept of Energy: High Level Waste Repository Pre-Application
Matters
Docket No. PAPO-00
Name of Participant-01
[FR Doc. 04-15788 Filed 7-12-04; 8:45 am]
BILLING CODE 7590-01-P