[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]
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