[Federal Register Volume 73, Number 76 (Friday, April 18, 2008)]
[Notices]
[Pages 21162-21165]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-8414]


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NUCLEAR REGULATORY COMMISSION

[Docket No. 52-017]


Dominion Virginia Power; Supplement to Notice of Hearing and 
Opportunity to Petition for Leave To Intervene on a Combined License 
for North Anna Unit 3; Order Imposing Procedures for Access To 
Sensitive Unclassified Non-Safeguards Information (SUNSI) and 
Safeguards Information (SGI) for Contention Preparation

    The U.S. Nuclear Regulatory Commission (NRC) has determined to 
issue a supplement to the ``Notice of Hearing and Opportunity to 
Petition for Leave to Intervene on a Combined License for North Anna 
Unit 3'' (Notice of Hearing) published in the Federal Register on March 
10, 2008 (73 FR 12760). The Notice of Hearing offered an opportunity to 
petition for leave to intervene in the proceeding on the application 
dated November 26, 2007, filed by Dominion Virginia Power (Dominion) 
pursuant to Subpart C of 10 CFR Part 52 for a combined license (COL) 
for North Anna Unit 3, which would be located at the North Anna Power 
Station in Louisa County, Virginia. The application references the 
Early Site Permit for the North Anna ESP Site (North Anna ESP), which 
was issued on November 27, 2007, and the application for certification 
of the economic simplified boiling water reactor (ESBWR) design, which 
was initially submitted on August 24, 2005. The Commission believes the 
documents on the dockets of the North Anna ESP and ESBWR proceedings 
may be useful to persons who seek to intervene in the proceeding on the 
COL application. Accordingly, this notice provides additional 
information on the availability of the North Anna ESP, the ESBWR 
application, and the documents

[[Page 21163]]

submitted on their respective dockets, which are Docket Nos. 52-008 
(North Anna ESP) and Docket No. 52-010 (ESBWR).
    Documents may be examined, and/or copied for a fee, at the NRC's 
Public Document Room (PDR), located at One White Flint North, Public 
File Area O1 F21, 11555 Rockville Pike (First Floor), Rockville, 
Maryland, and will be accessible electronically through the Agencywide 
Documents Access and Management System (ADAMS) Public Electronic 
Reading Room link at the NRC Web site http://www.nrc.gov/reading-rm/adams.html. The ADAMS accession number for the North Anna ESP is 
ML073180440. To search for documents on the North Anna ESP docket, 
enter ``05200008'' in the ``Docket Number'' field in the Web-based 
search (advanced search) engine or the ADAMS find tool. The ESP 
application and staff review documents related to the North Anna ESP 
are also available at http://www.nrc.gov/reactors/new-licensing/esp/north-anna.html. To search for documents on the ESBWR docket, enter 
``05200010'' in the ``Docket Number'' field in the Web-based search 
(advanced search) engine or the ADAMS find tool. The ESBWR design 
control document is also available at http://www.nrc.gov/reactors/new-licensing/design-cert/esbwr.html. In addition, as stated in the Notice 
of Hearing, the ADAMS accession number for the Dominion COL application 
(cover letter) is ML073320913, and the entire application is available 
at: http://www.nrc.gov/reactors/new-licensing/col.html. To search for 
documents on the North Anna COL application docket, enter ``05200017'' 
in the ``Docket Number'' field in the Web-based search (advanced 
search) engine or the ADAMS find tool. Persons who do not have access 
to ADAMS or who encounter problems in accessing documents located in 
ADAMS should contact the NRC PDR Reference staff by telephone at 1-800-
397-4209, or 301-415-4737, or by e-mail to [email protected].
    Neither this supplement to the Notice of Hearing nor the following 
Order changes the time set in the Notice of Hearing for the filing of 
petitions for leave to intervene in the proceeding on the Dominion COL 
application. The last day for filing such a petition remains May 9, 
2008.

Order Imposing Procedures for Access To Sensitive Unclassified Non-
Safeguards Information (SUNSI) and Safeguards Information (SGI) for 
Contention Preparation

    1. This order contains instructions regarding how potential parties 
to this proceeding may request access to documents containing sensitive 
unclassified information (including SUNSI and SGI).
    2. Within ten (10) days after publication of this Supplement to 
Notice Of Hearing And Opportunity To Petition For Leave To Intervene On 
A Combined License For North Anna Unit 3, any potential party as 
defined in 10 CFR 2.4 who believes access to SUNSI or SGI is necessary 
for a response to the Notice of Hearing may request access to SUNSI or 
SGI. A ``potential party'' is any person who intends or may intend to 
participate as a party by demonstrating standing and the filing of an 
admissible contention under 10 CFR 2.309. Requests submitted later than 
ten (10) days will not be considered absent a showing of good cause for 
the late filing, addressing why the request could not have been filed 
earlier.
    3. The requester shall submit a letter requesting permission to 
access SUNSI and/or SGI to the Office of the Secretary, U.S. Nuclear 
Regulatory Commission, Washington, DC 20555-0001, Attention: 
Rulemakings and Adjudications Staff, and provide a copy to the 
Associate General Counsel for Hearings, Enforcement and Administration, 
Office of the General Counsel, Washington, DC 20555-0001. The expedited 
delivery or courier mail address for both offices is U.S. Nuclear 
Regulatory Commission, 11555 Rockville Pike, Rockville, Maryland 20852. 
The e-mail address for the Office of the Secretary and the Office of 
the General Counsel are [email protected] and [email protected], 
respectively.\1\ The request must include the following information:
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    \1\ See footnote 6. While a request for hearing or petition to 
intervene in this proceeding must comply with the filing 
requirements of the NRC's ``E-Filing Rule,'' the initial request to 
access SUNSI and/or SGI under these procedures should be submitted 
as described in this paragraph.
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    a. A description of the licensing action with a citation to the 
Notice of Hearing published in the Federal Register on March 10, 2008 
(73 FR 12760);
    b. The name and address of the potential party and a description of 
the potential party's particularized interest that could be harmed by 
the action identified in (a);
    c. If the request is for SUNSI, the identity of the individual 
requesting access to SUNSI and the requester's need for the information 
in order to meaningfully participate in this adjudicatory proceeding, 
particularly why publicly available versions of the application would 
not be sufficient to provide the basis and specificity for a proffered 
contention;
    d. If the request is for SGI, the identity of the individual 
requesting access to SGI and the identity of any expert, consultant or 
assistant who will aid the requester in evaluating the SGI, and 
information that shows:
    (i) Why the information is indispensable to meaningful 
participation in this licensing proceeding; and,
    (ii) The technical competence (demonstrable knowledge, skill, 
experience, training or education) of the requester to understand and 
use (or evaluate) the requested information to provide the basis and 
specificity for a proffered contention. The technical competence of a 
potential party or its counsel may be shown by reliance on a qualified 
expert, consultant or assistant who demonstrates technical competence 
as well as trustworthiness and reliability, and who agrees to sign a 
non-disclosure affidavit and be bound by the terms of a protective 
order; and,
    e. If the request is for SGI, Form SF-85, ``Questionnaire for Non-
Sensitive Positions,'' Form FD-248 (fingerprint card), and a credit 
check release form completed by the individual who seeks access to SGI 
and each individual who will aid the requester in evaluating the SGI. 
For security reasons, Form SF-85 can only be submitted electronically, 
through a restricted-access database. To obtain online access to the 
form, the requester should contact the NRC's Office of Administration 
at 301-415-0320.\2\ The other completed forms must be signed in 
original ink, accompanied by a check or money order payable in the 
amount of $191.00 to the U.S. Nuclear Regulatory Commission for each 
individual, and mailed to the: Office of Administration, Security 
Processing Unit, Mail Stop T-6E46, U.S. Nuclear Regulatory Commission, 
Washington, DC 20555-0012.
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    \2\ The requester will be asked to provide his or her full name, 
social security number, date and place of birth, telephone number, 
and e-mail address. After providing this information, the requester 
usually should be able to obtain access to the online form within 
one business day.
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    These forms will be used to initiate the background check, which 
includes fingerprinting as part of a criminal history records check. 
Note: copies of these forms do not need to be included with the request 
letter to the Office of the Secretary, but the request letter

[[Page 21164]]

should state that the forms and fees have been submitted as described 
above.
    4. To avoid delays in processing requests for access to SGI, all 
forms should be reviewed for completeness and accuracy (including 
legibility) before submitting them to the NRC. Incomplete packages will 
be returned to the sender and will not be processed.
    5. Based on an evaluation of the information submitted under items 
2 and 3.a through 3.d, above, the NRC staff will determine within ten 
days of receipt of the written access request whether (1) there is a 
reasonable basis to believe the petitioner is likely to establish 
standing to participate in this NRC proceeding, and (2) there is a 
legitimate need for access to SUNSI or need to know the SGI requested. 
For SGI, the need to know determination is made based on whether the 
information requested is necessary (i.e., indispensable) for the 
proposed recipient to proffer and litigate a specific contention in 
this NRC proceeding \3\ and whether the proposed recipient has the 
technical competence (demonstrable knowledge, skill, training, 
education, or experience) to evaluate and use the specific SGI 
requested in this proceeding.
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    \3\ Broad SGI requests under these procedures are thus highly 
unlikely to meet the standard for need to know; furthermore, staff 
redaction of information from requested documents before their 
release may be appropriate to comport with this requirement. These 
procedures do not authorize unrestricted disclosure or less scrutiny 
of a requester's need to know than ordinarily would be applied in 
connection with an already-admitted contention.
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    6. If standing and need to know SGI are shown, the NRC staff will 
further determine based upon completion of the background check whether 
the proposed recipient is trustworthy and reliable. The NRC staff will 
conduct (as necessary) an inspection to confirm that the recipient's 
information protection systems are sufficient to protect SGI from 
inadvertent release or disclosure. Recipients may opt to view SGI at 
the NRC's facility rather than establish their own SGI protection 
program to meet SGI protection requirements.
    7. A request for access to SUNSI or SGI will be granted if:
    a. The request has demonstrated that there is a reasonable basis to 
believe that a potential party is likely to establish standing to 
intervene or to otherwise participate as a party in this proceeding;
    b. The proposed recipient of the information has demonstrated a 
need for SUNSI or a need to know for SGI, and that the proposed 
recipient of SGI is trustworthy and reliable;
    c. The proposed recipient of the information has executed a Non-
Disclosure Agreement or Affidavit and agrees to be bound by the terms 
of a Protective Order setting forth terms and conditions to prevent the 
unauthorized or inadvertent disclosure of SUNSI and/or SGI; and,
    d. The presiding officer has issued a protective order concerning 
the information or documents requested.\4\ Any protective order issued 
shall provide that the petitioner must file SUNSI or SGI contentions 25 
days after receipt of (or access to) that information. However, if more 
than 25 days remain between the petitioner's receipt of (or access to) 
the information and the deadline for filing all other contentions (as 
established in the Notice of Hearing), the petitioner may file its 
SUNSI or SGI contentions by that later deadline.
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    \4\ If a presiding officer has not yet been designated, the 
Chief Administrative Judge will issue such orders, or will appoint a 
presiding officer to do so.
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    8. If the request for access to SUNSI or SGI is granted, the terms 
and conditions for access to sensitive unclassified information will be 
set forth in a draft protective order and affidavit of non-disclosure 
appended to a joint motion by the NRC staff, any other affected parties 
to this proceeding,\5\ and the petitioner(s). If the diligent efforts 
by the relevant parties or petitioner(s) fail to result in an agreement 
on the terms and conditions for a draft protective order or non-
disclosure affidavit, the relevant parties to the proceeding or the 
petitioner(s) should notify the presiding officer within five (5) days, 
describing the obstacles to the agreement.
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    \5\ Parties/persons other than the requester and the NRC staff 
will be notified by the NRC staff of a favorable access 
determination (and may participate in the development of such a 
motion and protective order) if it concerns SUNSI and if the party/
person's interest independent of the proceeding would be harmed by 
the release of the information (e.g., as with proprietary 
information).
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    9. If the request for access to SUNSI is denied by the NRC staff or 
a request for access to SGI is denied by NRC staff either after a 
determination on standing and need to know or, later, after a 
determination on trustworthiness and reliability, the NRC staff shall 
briefly state the reasons for the denial. Before the Office of 
Administration makes an adverse determination regarding access, the 
proposed recipient must be provided an opportunity to correct or 
explain information. The requester may challenge the NRC staff's 
adverse determination with respect to access to SUNSI or with respect 
to standing or need to know for SGI by filing a challenge within five 
(5) days of receipt of that determination with (a) the presiding 
officer designated in this proceeding; (b) if no presiding officer has 
been appointed, the Chief Administrative Judge, or if he or she is 
unavailable, another administrative judge, or an administrative law 
judge with jurisdiction pursuant to 10 CFR 2.318(a); or (c) if another 
officer has been designated to rule on information access issues, with 
that officer. In the same manner, an SGI requester may challenge an 
adverse determination on trustworthiness and reliability by filing a 
challenge within fifteen (15) days of receipt of that determination.
    In the same manner, a party other than the requester may challenge 
an NRC staff determination granting access to SUNSI whose release would 
harm that party's interest independent of the proceeding. Such a 
challenge must be filed within five (5) days of the notification by the 
NRC staff of its grant of such a request.
    If challenges to the NRC staff determinations are filed, these 
procedures give way to the normal process for litigating disputes 
concerning access to information. The availability of interlocutory 
review by the Commission of orders ruling on such NRC staff 
determinations (whether granting or denying access) is governed by 10 
CFR 2.311.\6\
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    \6\ As of October 15, 2007, the NRC's final ``E-Filing Rule'' 
became effective. See Use of Electronic Submissions in Agency 
Hearings (72 FR 49139; August 28, 2007). Requesters should note that 
the filing requirements of that rule apply to appeals of NRC staff 
determinations (because they must be served on a presiding officer 
or the Commission, as applicable), but not to the initial SUNSI/SGI 
requests submitted to the NRC staff under these procedures.
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    10. The Commission expects that the NRC staff and presiding 
officers (and any other reviewing officers) will consider and resolve 
requests for access to SUNSI and/or SGI, and motions for protective 
orders, in a timely fashion in order to minimize any unnecessary delays 
in identifying those petitioners who have standing and who have 
propounded contentions meeting the specificity and basis requirements 
in 10 CFR Part 2.

    Dated at Rockville, Maryland, this 14th day of April 2008.

    For the U.S. Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.

[[Page 21165]]



   Attachment 1.--General Target Schedule for Processing and Resolving
Requests for Access to Sensitive Unclassified Non-Safeguards Information
              and Safeguards Information in This Proceeding
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          Day                            Event/activity
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0.....................  Publication of Supplement to Federal Register
                         notice of hearing and opportunity to petition
                         for leave to intervene, including order with
                         instructions for access requests.
10....................  Deadline for submitting requests for access to
                         Sensitive Unclassified Non-Safeguards
                         Information (SUNSI) and/or Safeguards
                         Information (SGI) with information: supporting
                         the standing of a potential party identified by
                         name and address; describing the need for the
                         information in order for the potential party to
                         participate meaningfully in an adjudicatory
                         proceeding; demonstrating that access should be
                         granted (e.g., showing technical competence for
                         access to SGI); and, for SGI, including
                         application fee for fingerprint/background
                         check.
20....................  Nuclear Regulatory Commission (NRC) staff
                         informs the requester of the staff's
                         determination whether the request for access
                         provides a reasonable basis to believe standing
                         can be established and shows (1) need for SUNSI
                         or (2) need to know for SGI. (For SUNSI, NRC
                         staff also informs any party to the proceeding
                         whose interest independent of the proceeding
                         would be harmed by the release of the
                         information.) If NRC staff makes the finding of
                         need for SUNSI and likelihood of standing, NRC
                         staff begins document processing (preparation
                         of redactions or review of redacted documents).
                         If NRC staff makes the finding of need to know
                         for SGI and likelihood of standing, NRC staff
                         begins background check (including
                         fingerprinting for a criminal history records
                         check), information processing (preparation of
                         redactions or review of redacted documents),
                         and readiness inspections.
60....................  May 9, 2008, deadline for submitting petition
                         for intervention containing: (i) demonstration
                         of standing; (ii) all contentions whose
                         formulation does not require access to SUNSI
                         and/or SGI (+25 Answers to petition for
                         intervention; +7 petitioner/requestor reply).
25....................  If NRC staff finds no ``need,'' ``need to
                         know,'' or likelihood of standing, the deadline
                         for petitioner/requester to file a motion
                         seeking a ruling to reverse the NRC staff's
                         denial of access; NRC staff files copy of
                         access determination with the presiding officer
                         (or Chief Administrative Judge or other
                         designated officer, as appropriate). If NRC
                         staff finds ``need'' for SUNSI, the deadline
                         for any party to the proceeding whose interest
                         independent of the proceeding would be harmed
                         by the release of the information to file a
                         motion seeking a ruling to reverse the NRC
                         staff's grant of access.
30....................  Deadline for NRC staff reply to motions to
                         reverse NRC staff determination(s).
40....................  (Receipt +30) If NRC staff finds standing and
                         need for SUNSI, deadline for NRC staff to
                         complete information processing and file motion
                         for Protective Order and draft Non-Disclosure
                         Affidavit. Deadline for applicant/licensee to
                         file Non-Disclosure Agreement for SUNSI.
190...................  (Receipt +180) If NRC staff finds standing, need
                         to know for SGI, and trustworthiness and
                         reliability, deadline for NRC staff to file
                         motion for Protective Order and draft Non-
                         disclosure Affidavit (or to make a
                         determination that the proposed recipient of
                         SGI is not trustworthy or reliable). Note:
                         Before the Office of Administration makes an
                         adverse determination regarding access, the
                         proposed recipient must be provided an
                         opportunity to correct or explain information.
205...................  Deadline for petitioner to seek reversal of a
                         final adverse NRC staff determination either
                         before the presiding officer or another
                         designated officer.
A.....................  If access granted: Issuance of presiding officer
                         or other designated officer decision on motion
                         for protective order for access to sensitive
                         information (including schedule for providing
                         access and submission of contentions) or
                         decision reversing a final adverse
                         determination by the NRC staff.
A + 3.................  Deadline for filing executed Non-Disclosure
                         Affidavits. Access provided to SUNSI and/or SGI
                         consistent with decision issuing the protective
                         order.
A + 28................  Deadline for submission of contentions whose
                         development depends upon access to SUNSI and/or
                         SGI. However, if more than 25 days remain
                         between the petitioner's receipt of (or access
                         to) the information and the deadline for filing
                         all other contentions (as established in the
                         notice of hearing or opportunity for hearing),
                         the petitioner may file its SUNSI or SGI
                         contentions by that later deadline.
A + 53................  (Contention receipt +25) Answers to contentions
                         whose development depends upon access to SUNSI
                         and/or SGI.
A + 60................  (Answer receipt +7) Petitioner/Intervenor reply
                         to answers.
B.....................  Decision on contention admission.
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 [FR Doc. E8-8414 Filed 4-17-08; 8:45 am]
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