[Federal Register Volume 73, Number 49 (Wednesday, March 12, 2008)]
[Notices]
[Pages 13256-13258]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-4918]


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NUCLEAR REGULATORY COMMISSION

[Docket No. PAPO-001; ASLBP No. 08-861-01-PAPO-BD01]


Atomic Safety and Licensing Board; In the Matter of: U.S. 
Department of Energy: (High-Level Waste Repository: Pre-Application 
Matters, Advisory PAPO Board); Notice and Memorandum (Requesting 
Information From Potential Parties)

March 6, 2008.
    Before Administrative Judges: Thomas S. Moore, Chairman; G. Paul 
Bollwerk, III; E. Roy Hawkens.

I. Introduction

    On December 13, 2007, the Commission authorized the establishment 
of an Advisory Pre-License Application Presiding Officer Board 
(Advisory PAPO Board) to obtain input from potential parties \1\ on the 
broad range of procedural matters expected to arise from, and 
associated case management requirements that could be imposed in, any 
adjudication regarding an application by the Department of Energy (DOE) 
for authorization to construct a high-level waste (HLW) repository at 
Yucca Mountain, Nevada.\2\ Pursuant to this authority, this Board was 
established on February 13, 2008.\3\ This memorandum is the first 
request from this Board for information from potential parties to the 
HLW repository proceeding on the construction permit application of 
DOE.\4\
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    \1\ ``Potential party,'' as it is used here, means DOE, the NRC 
Staff, the State of Nevada, and any person or entity that meets the 
definitions of ``party,'' ``potential party,'' or ``interested 
governmental participant'' under 10 CFR 2.1001.
    \2\ Staff Requirements Memorandum COMSECY-07-0030--Requesting 
Authority to Issue Case Management Orders in High-Level Waste 
Proceeding Prior to the Issuance of a Notice of Opportunity for 
Hearing (Dec. 13, 2007).
    \3\ See 73 FR 9358 (Feb. 20, 2008).
    \4\ To ensure a wide dissemination of this Memorandum, it is 
being published in the Federal Register. It is also being served on 
the service list for the PAPO proceeding, docket number PAPO-00, 
which the Secretary of the Commission has incorporated as the 
initial service list for this proceeding.
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II. Requests for Information

A. Request for Information From Any Potential Parties

    The Nuclear Waste Policy Act of 1982, as amended, sets a three-year 
time period, with the possibility of a one-year extension, for the NRC 
to review and make a licensing determination on the application for the 
construction of the HLW repository.\5\ Appendix D of 10 CFR Part 2 
establishes a schedule, based upon the time period prescribed by the 
Nuclear Waste Policy Act, for the adjudication arising from challenges 
to the DOE license application, and 10 CFR 2.1026 mandates that 
licensing boards in the HLW proceeding meet this schedule.\6\
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    \5\ Nuclear Waste Policy Act of 1982, as amended, section 
114(d), 42 U.S.C. 10134(d). 5
    \6\ See 10 CFR Part 2, App. D; 10 CFR 2.1026(a).
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    The schedule in the Commission's regulations is rigorous, 
considering the potential complexity of the HLW proceeding,\7\ with 
initial deadlines for the filing of contentions, answers to those 
contentions, and replies to answers due in relatively short order 
following the issuance of the initial hearing opportunity notice. 
Pursuant to 10 CFR 2.309(b)(2), potential parties (i.e., petitioners) 
must file petitions to intervene containing contentions within 30 days 
of the date of publication of the Notice of Opportunity for Hearing in 
the Federal Register.\8\ Thereafter, Appendix D requires applicant DOE, 
the NRC staff, and any other potential party challenging the admission 
of contentions to file answers to any intervention petitions within 25 
days.\9\ After DOE, the NRC staff, and any other potential party 
challenging contention admissibility file their answers, potential 
parties (i.e., petitioners) have 7 days within which to file 
replies.\10\
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    \7\ The Commission has acknowledged the potential complexity of 
the HLW repository proceeding. See 69 FR 2182, 2204 (Jan. 14, 2004).
    \8\ 10 CFR 2.309(b)(2)
    \9\ CFR Part 2, App. D (Day 55).
    \10\ Id. (Day 62).
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    If potential parties request extensions of time for filing answers 
or replies, the authority of any licensing board is expressly limited 
to extensions of an additional 15 days.\11\ All requests for extensions 
of time in excess of 15 days must be referred to the Commission.\12\ As 
a consequence, if licensing boards are to manage realistically these 
proceedings within the schedule set out in Appendix D, it is imperative 
that procedural standards be developed at the outset to organize 
potential party submissions.

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    \11\ CFR 2.1026(b)(1).
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    \12\ 10 CFR 2.1026(b)(2).
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    Before we request input on such procedural standards from potential 
parties, however, we need a realistic estimation of the scope of the 
challenge we (and the potential parties) face. Accordingly, we request 
the following:
    1. Each potential party considering filing a petition to intervene 
should

[[Page 13257]]

provide us with its current, best, good-faith estimate of the number of 
initial contentions it intends to file, using the number ranges 
provided below.
    We recognize that until DOE files, inter alia, a license 
application, no potential party will know definitively how many 
contentions it will file or the subject matter of its contentions, so 
an exact figure is not possible. Thus, we are seeking only best, good-
faith estimates, nothing more. Further, because we are seeking this 
information for the purpose of developing standards for the effective 
and efficient management of the proceeding, potential party estimates 
will be used solely and exclusively for that purpose, and no other, and 
is without prejudice to the potential party's ability subsequently to 
file a larger (or smaller) number of contentions.
Estimated Number of Contentions
(1) 1-10
(2) 11-25
(3) 26-50
(4) 50-100
(5) 101-250
(6) 251-500
(7) 501-1000
(8) 1001-2000
(9) 2001-3000
(10) 3001+

    2. DOE, the NRC Staff, and any potential party challenging the 
admissibility of contentions should provide a best, good-faith estimate 
of the number of days it realistically will need to file reasoned 
answers to each range of contentions listed above to aid the licensing 
boards in resolving the admissibility of contentions. In estimating the 
time it will take to file such reasoned answers, DOE and any potential 
party challenging the admissibility of contentions should keep in mind 
that 10 CFR Part 2, Subpart J eliminates the apparent need in other 
proceedings for applicants and other challengers of contention 
admissibility to challenge the admissibility of all proffered 
contentions to preserve the right to an interlocutory appeal of a 
licensing board's ruling admitting any contention.\13\ Instead, Subpart 
J provides for an interlocutory appeal to the Commission on a licensing 
board's contention admissibility decisions regardless of whether the 
party took the initial position that the petition should have been 
``wholly denied.'' \14\
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    \13\ See 10 CFR 2.311(c) (allowing interlocutory appeal of 
licensing board decision granting petition to intervene only if 
issue is ``whether the request/petition should have been wholly 
denied'').
    \14\ 10 CFR 2.1015(b); see also 10 CFR Part 2, App. D (Day 110).
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    3. Each potential party expecting to file a petition to intervene 
should provide a best, good-faith estimate of the number of days it 
realistically will need to file replies to the answers, keeping in mind 
that the filing of a reply is the first (and only written) opportunity 
a petitioner has to defend its contentions.
    Again, we recognize that at this stage before the application has 
been filed plans for filing contentions have not been finalized. We 
emphasize, however, that we are only looking for best, good-faith 
estimates to establish a format for the filing of contentions that will 
best enable the Appendix D schedule to be met. Whether they support or 
oppose the potential DOE application, any potential parties that are 
reluctant to cooperate should realize that the work of the Advisory 
PAPO Board is intended to assist them in meeting deadlines once an 
application is filed.\15\
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    \15\ In this regard, although we recognize that the State of 
Nevada consistently has maintained that its ability to provide an 
estimate of the number of contentions is severely constrained by its 
lack of access to the application and its major supporting 
documentation, such as the total system performance assessment 
model/analysis for the license application, see, e.g., Motion to 
Strike DOE's October 19, 2007 LSN Recertification and to Suspend 
Certification of Others Until DOE Validly Recertifies (Oct. 29, 
2007) at 34, we are hopeful its ability to make a best, good-faith 
estimate may be enhanced considerably by DOE's apparent recent 
submission of that document into the Licensing Support Network. See 
Total System Performance Assessment Model/Analysis for the License 
Application Volume I, Volume II, and Volume III (C), LSN Accession 
No. DEN001574936.
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B. Request for Information From DOE

    Our goal in issuing this Memorandum is, among other things, to 
obtain information to better enable us to propose to potential parties 
for comment one or more potential organizational structures that will 
ensure (1) each contention is clear on its face in addressing each of 
the admissibility requirements of section 2.309(f)(1)(i)-(vi); (2) 
those opposing the admissibility of a contention are able readily to 
identify and challenge only those portions of a contention that fail to 
meet the admissibility requirements of section 2.309(f)(1)(i)-(vi); (3) 
potential parties are able effectively to defend the admissibility of 
their contentions in any reply pleadings; and (4) licensing boards are 
able to see how each contention addresses the factors in section 
2.309(f)(1) and what challenges and defenses have been interposed 
relative to that contention, in order to make a timely, reasoned 
decision regarding whether each contention is admissible.
    One approach we believe could provide an organizational structure 
that would accomplish these purposes would be to label contentions in a 
way that models the Table of Contents (TOC) of the DOE License 
Application to show the specific portion of the application being 
challenged, which petitioners are required to demonstrate under 10 CFR 
2.309(f)(1)(vi) when contentions are filed. In addition, knowing the 
level of granularity of DOE's TOC may assist the Board to develop a 
proposal regarding the specificity necessary for petitioners to state 
their issues of law or fact to be controverted under section 
2.309(f)(1)(i). Contentions that are modeled on the TOC might in turn 
assist those who will be filing answers, including DOE, to ascertain 
quickly the focus of the contention and to challenge directly, as 
necessary, the admissibility of contentions in a timely manner.
    To enable us to develop this proposal, it would be helpful if DOE 
would file the current draft version of the TOC of its License 
Application. If DOE has a legitimate reason which it believes precludes 
it from filing the draft TOC for the entire License Application, we 
request that it file the draft TOC for the general information section 
of the License Application.\16\ If DOE believes it has a legitimate 
reason that precludes it from filing the draft TOC for the general 
information section, we request that it provide a full description of 
the level of detail (i.e., complete hierarchical structure) that it 
plans to use in the TOC. If DOE chooses not to file any part of the 
draft TOC, we also request that it explain fully its reasons for 
withholding the TOC so we, in turn, can explain to the Commission the 
reason DOE has been unable to aid our efforts to make the HLW 
proceeding more efficient for all involved.\17\
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    \16\ See 10 CFR 63.21(a), (b); see also Office of Nuclear 
Materials Safety & Safeguards, U.S. Nuclear Regulatory Comm'n, Yucca 
Mountain Review Plan, NUREG-1804, at 1-1 to 1-31 (rev. 2 July 2003).
    \17\ Additionally, if DOE declines to provide the application 
TOC, it should suggest an alternative organizational structure for 
contentions that can be utilized by potential intervenors without 
having to await the filing of its HLW application.
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III. Filing and Service

    The first filing by any potential party wishing to respond that has 
not filed a notice of appearance in the initial PAPO proceeding, docket 
number PAPO-00, should be accompanied by a notice of appearance from 
that potential party's authorized representative or counsel containing 
all required information under 10 CFR 2.314(b). The notice of 
appearance will provide the information necessary to establish and 
maintain a service list, so that participants can be accurately 
identified and duly notified

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during this advisory phase of the proceeding.\18\
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    \18\ We caution that for potential parties that have not already 
been participating in the PAPO proceeding, docket number PAPO-00, 
filing a notice of appearance with this Advisory PAPO Board, docket 
number PAPO-001, will not suffice for participation in the PAPO 
proceeding.
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    Responses to this memorandum and any other responses to information 
or requests for input from the Advisory PAPO Board must be submitted 
and served electronically through the NRC's Electronic Information 
Exchange (EIE) system, docket number PAPO-001. Potential parties that 
already have been participating in the PAPO proceeding, docket number 
PAPO-00, and using the EIE system do not need to do anything additional 
to be able to file in this Advisory PAPO proceeding. Those that have 
not been participating in the PAPO proceeding but wish to make 
submissions before this Board should consult the NRC's Web site, which 
provides detailed instructions on the steps necessary to access and 
make EIE submissions, including (1) obtaining a digital certificate 
from the NRC Office of the Secretary and installing that certificate 
into the participant's Web browser (http://www.nrc.gov/site-help/e-submittals/apply-certificates.html); (2) loading the viewer software 
currently needed to submit and view documents in the EIE system (http://www.nrc.gov/site-help/e-submittals/install-viewer.html); (3) creating 
a document in the portable document format (PDF) suitable for EIE 
submission (http://www.nrc.gov/site-help/electronic-sub-ref-mat.html); 
and (4) accessing the EIE Web site and submitting the document (http://www.nrc.gov/site-help/e-submittals/submit-documents.html). A potential 
party that is not currently participating in the PAPO proceeding and 
using EIE should begin this process no less than five days before it 
wishes to make an initial submission. In submitting their responses, 
potential parties should make sure they are filing them on this docket, 
PAPO-001, which is denominated as the ``Advisory PAPO Board'' on the 
dropdown list of proceedings that is part of the EIE filing form.
    We request that all potential parties (including DOE and the NRC 
Staff) provide us with a filing that includes the information described 
above in Part II.A and that in its filing DOE also provide us with the 
information described above in Part II.B. All filings should be 
submitted through the agency's EIE system and served on the service 
list for the Advisory PAPO Board proceeding, docket number PAPO-001, by 
Monday, March 24, 2008.

    March 6, 2008, Rockville, Maryland.

    The Advisory Pre-License Application, Presiding Officer Board.
Thomas S. Moore,
Chairman, Administrative Judge.
G. Paul Bollwerk, III,
Administrative Judge.
E. Roy Hawkens,
Administrative Judge.
[FR Doc. E8-4918 Filed 3-11-08; 8:45 am]
BILLING CODE 7590-01-P