[Federal Register Volume 73, Number 237 (Tuesday, December 9, 2008)]
[Notices]
[Pages 74757-74763]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-28949]
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NUCLEAR REGULATORY COMMISSION
Notice; Application and Amendment to Facility Operating Licenses
Involving Proposed No Significant Hazards Considerations and Containing
Sensitive Unclassified Non-Safeguards Information or Safeguards
Information and Order Imposing Procedures for Access to Sensitive
Unclassified Non-Safeguards Information or Safeguards Information
I. Background
Pursuant to section 189a. (2) of the Atomic Energy Act of 1954, as
amended (the Act), the U.S. Nuclear Regulatory Commission (the
Commission or NRC staff) is publishing this notice. The Act requires
the Commission publish notice of any amendments issued, or proposed to
be issued and grants the Commission the authority to issue and make
immediately effective any amendment to an operating license upon a
determination by the Commission that such amendment involves no
significant hazards consideration, notwithstanding
[[Page 74758]]
the pendency before the Commission of a request for a hearing from any
person.
This notice includes a notice of amendment containing sensitive
unclassified non-safeguards information (SUNSI) or safeguards
information (SGI).
Notice of Consideration of Issuance of Amendments to Facility Operating
Licenses, Proposed No Significant Hazards Consideration Determination,
and Opportunity for a Hearing
The Commission has made a proposed determination that the following
amendment request involves no significant hazards consideration. Under
the Commission's regulations in 10 CFR 50.92, this means that operation
of the facility in accordance with the proposed amendment would not (1)
involve a significant increase in the probability or consequences of an
accident previously evaluated; or (2) create the possibility of a new
or different kind of accident from any accident previously evaluated;
or (3) involve a significant reduction in a margin of safety. The basis
for this proposed determination for each amendment request is shown
below.
The Commission is seeking public comments on this proposed
determination. Any comments received within 30 days after the date of
publication of this notice will be considered in making any final
determination.
Normally, the Commission will not issue the amendment until the
expiration of 60 days after the date of publication of this notice. The
Commission may issue the license amendment before expiration of the 60-
day period provided that its final determination is that the amendment
involves no significant hazards consideration. In addition, the
Commission may issue the amendment prior to the expiration of the 30-
day comment period should circumstances change during the 30-day
comment period such that failure to act in a timely way would result,
for example in derating or shutdown of the facility. Should the
Commission take action prior to the expiration of either the comment
period or the notice period, it will publish in the Federal Register a
notice of issuance. Should the Commission make a final No Significant
Hazards Consideration Determination, any hearing will take place after
issuance. The Commission expects that the need to take this action will
occur very infrequently.
Written comments may be submitted by mail to the Chief, Rulemaking,
Directives and Editing Branch, Division of Administrative Services,
Office of Administration, U.S. Nuclear Regulatory Commission,
Washington, DC 20555-0001, and should cite the publication date and
page number of this Federal Register notice. Written comments may also
be delivered to Room 6D22, Two White Flint North, 11545 Rockville Pike,
Rockville, Maryland, from 7:30 a.m. to 4:15 p.m. Federal workdays.
Copies of written comments received may be examined at the Commission's
Public Document Room (PDR), located at One White Flint North, Public
File Area O1F21, 11555 Rockville Pike (first floor), Rockville,
Maryland. The filing of requests for a hearing and petitions for leave
to intervene is discussed below.
Within 60 days after the date of publication of this notice,
person(s) may file a request for a hearing with respect to issuance of
the amendment to the subject facility operating license and 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 request
via electronic submission through the NRC E-Filing system for a hearing
and a petition for leave to intervene. Requests for a hearing and a
petition for leave to intervene shall be filed in accordance with the
Commission's ``Rules of Practice for Domestic Licensing Proceedings''
in 10 CFR Part 2. Interested person(s) should consult a current copy of
10 CFR 2.309, which is available at the Commission's PDR, located at
One White Flint North, Public File Area 01F21, 11555 Rockville Pike
(first floor), Rockville, Maryland, or at http://www.nrc.gov/reading-rm/doc-collections/cfr/part002/part002-0309.html. Publicly available
records will be accessible from the Agencywide Documents Access and
Management System's (ADAMS) Public Electronic Reading Room on the
Internet at the NRC Web site, http://www.nrc.gov/reading-rm.html. If a
request for a hearing or petition for leave to intervene is filed
within 60 days, the Commission or a presiding officer designated by the
Commission or by the Chief Administrative Judge of the Atomic Safety
and Licensing Board Panel, will rule on the request and/or petition;
and the Secretary or the Chief Administrative Judge of the Atomic
Safety and Licensing Board will issue a notice of a hearing or an
appropriate order.
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 should specifically explain the reasons
why intervention should be permitted with particular reference to the
following general requirements: (1) The name, address, and telephone
number of the requestor or petitioner; (2) the nature of the
requestor's/petitioner's right under the Act to be made a party to the
proceeding; (3) the nature and extent of the requestor's/petitioner's
property, financial, or other interest in the proceeding; and (4) the
possible effect of any decision or order which may be entered in the
proceeding on the requestor's/petitioner's interest. The petition must
also set forth the specific contentions which the petitioner/requestor
seeks to have litigated at the proceeding.
Each contention must consist of a specific statement of the issue
of law or fact to be raised or controverted. In addition, the
petitioner/requestor shall provide a brief explanation of the bases for
the contention and a concise statement of the alleged facts or expert
opinion which support the contention and on which the petitioner/
requestor intends to rely in proving the contention at the hearing. The
petitioner/requestor must also provide references to those specific
sources and documents of which the petitioner is aware and on which the
petitioner/requestor intends to rely to establish those facts or expert
opinion. The petition must include sufficient information to show that
a genuine dispute exists with the applicant on a material issue of law
or fact. Contentions shall be limited to matters within the scope of
the amendment under consideration. The contention must be one which, if
proven, would entitle the petitioner/requestor to relief. A petitioner/
requestor who fails to satisfy these requirements with respect to at
least one contention will not be permitted to participate as a party.
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.
If a hearing is requested, and the Commission has not made a final
determination on the issue of no significant hazards consideration, the
Commission will make a final determination on the issue of no
significant hazards consideration. The final determination will serve
to decide when the hearing is held. If the final determination is that
the amendment request involves no significant hazards consideration,
the Commission may issue the amendment and make it immediately
effective, notwithstanding the request for a hearing. Any hearing
[[Page 74759]]
held would take place after issuance of the amendment. If the final
determination is that the amendment request involves a significant
hazards consideration, any hearing held would take place before the
issuance of any amendment.
All documents filed in NRC adjudicatory proceedings, including a
request for hearing, a petition for leave to intervene, any motion or
other document filed in the proceeding prior to the submission of a
request for hearing or petition to intervene, and documents filed by
interested governmental entities participating under 10 CFR 2.315(c),
must be filed in accordance with the NRC E-Filing rule, which the NRC
promulgated in August 28, 2007 (72 FR 49139). The E-Filing process
requires participants to submit and serve all adjudicatory documents
over the internet, or in some cases to mail copies on electronic
storage media. Participants may not submit paper copies of their
filings unless they seek a waiver in accordance with the procedures
described below.
To comply with the procedural requirements of E-Filing, at least
ten (10) days prior to the filing deadline, the petitioner/requestor
must contact the Office of the Secretary by e-mail at
[email protected], or by calling (301) 415-1677, to request (1) a
digital ID certificate, which allows the participant (or its counsel or
representative) to digitally sign documents and access the E-Submittal
server for any proceeding in which it is participating; and/or (2)
creation of an electronic docket for the proceeding (even in instances
in which the petitioner/requestor (or its counsel or representative)
already holds an NRC-issued digital ID certificate). Each petitioner/
requestor will need to download the Workplace Forms Viewer(tm) to
access the Electronic Information Exchange (EIE), a component of the E-
Filing system. The Workplace Forms Viewer(tm) is free and is available
at http://www.nrc.gov/site-help/e-submittals/install-viewer.html.
Information about applying for a digital ID certificate is available on
NRC's public Web site at http://www.nrc.gov/site-help/e-submittals/apply-certificates.html.
Once a petitioner/requestor has obtained a digital ID certificate,
had a docket created, and downloaded the EIE viewer, it can then submit
a request for hearing or petition for leave to intervene. Submissions
should be in Portable Document Format (PDF) in accordance with NRC
guidance available on the NRC public Web site at http://www.nrc.gov/site-help/e-submittals.html. A filing is considered complete at the
time the filer submits its documents through EIE. To be timely, an
electronic filing must be submitted to the EIE system no later than
11:59 p.m. Eastern Time on the due date. Upon receipt of a
transmission, the E-Filing system time-stamps the document and sends
the submitter an e-mail notice confirming receipt of the document. The
EIE system also distributes an e-mail notice that provides access to
the document to the NRC Office of the General Counsel and any others
who have advised the Office of the Secretary that they wish to
participate in the proceeding, so that the filer need not serve the
documents on those participants separately. Therefore, applicants and
other participants (or their counsel or representative) must apply for
and receive a digital ID certificate before a hearing request/petition
to intervene is filed so that they can obtain access to the document
via the E-Filing system.
A person filing electronically may seek assistance through the
``Contact Us'' link located on the NRC Web site at http://www.nrc.gov/site-help/e-submittals.html or by calling the NRC Meta-System Help
Desk, which is available between 8 a.m. and 8 p.m., Eastern Time,
Monday through Friday. The Meta-System Help Desk can be contacted by
telephone at 1-866-672-7640 or by e-mail at [email protected].
Participants who believe that they have a good cause for not
submitting documents electronically must file a motion, in accordance
with 10 CFR 2.302(g), with their initial paper filing requesting
authorization to continue to submit documents in paper format. Such
filings must be submitted by: (1) First class mail addressed to the
Office of the Secretary of the Commission, U.S. Nuclear Regulatory
Commission, Washington, DC 20555-0001, Attention: Rulemaking and
Adjudications Staff; or (2) courier, express mail, or expedited
delivery service to the Office of the Secretary, Sixteenth Floor, One
White Flint North, 11555 Rockville Pike, Rockville, Maryland, 20852,
Attention: Rulemaking and Adjudications Staff. Participants filing a
document in this manner are responsible for serving the document on all
other participants. Filing is considered complete by first-class mail
as of the time of deposit in the mail, or by courier, express mail, or
expedited delivery service upon depositing the document with the
provider of the service.
Non-timely requests and/or petitions and contentions will not be
entertained absent a determination by the Commission or the presiding
officer of the Atomic Safety and Licensing Board that the petition and/
or request should be granted and/or the contentions should be admitted,
based on a balancing of the factors specified in 10 CFR 2.309(c)(1)(i)-
(viii).
Documents submitted in adjudicatory proceedings will appear in
NRC's electronic hearing docket which is available to the public at
http://ehd.nrc.gov/ehd_proceeding/home.asp , unless excluded pursuant
to an order of the Commission, an Atomic Safety and Licensing Board, or
a Presiding Officer. Participants are requested not to include personal
privacy information, such as social security numbers, home addresses,
or home phone numbers in their filings. With respect to copyrighted
works, except for limited excerpts that serve the purpose of the
adjudicatory filings and would constitute a Fair Use application,
participants are requested not to include copyrighted materials in
their submission.
For further details with respect to this amendment action, see the
application for amendment which is available for public inspection at
the Commission's PDR, located at One White Flint North, Public File
Area 01F21, 11555 Rockville Pike (first floor), Rockville, Maryland.
Publicly available records will be accessible from the ADAMS Public
Electronic Reading Room on the Internet at the NRC Web site, http://www.nrc.gov/reading-rm/adams.html. If you do not have access to ADAMS
or if there are problems in accessing the documents located in ADAMS,
contact the PDR Reference staff at 1 (800) 397-4209, (301) 415-4737 or
by email to [email protected].
FPL Energy, Point Beach, LLC, Docket Nos. 50-266 and 50-301, Point
Beach Nuclear Plant, Units 1 and 2, Town of Two Creeks, Manitowoc
County, Wisconsin
Date of amendment request: July 24, 2008.
Description of amendment request: This amendment request contains
sensitive unclassified non-safeguards information (SUNSI). This
amendment requests changes to Operating Licenses DPR-24 and DPR-27,
Point Beach Nuclear Plant (PBNP) Units 1 and 2. The proposed changes to
the PBNP Operating Licenses will revise the Technical Specifications
(TS) to incorporate the results of a new spent fuel pool criticality
analysis. The results of the new criticality analysis will provide the
basis necessary for changes to TS 3.7.12--Spent Fuel Pool Storage and
TS 4.3.1--Criticality.
[[Page 74760]]
Basis for proposed no significant hazards consideration
determination: As required by 10 CFR 50.91(a), the licensee has
provided its analysis of the issue of no significant hazards
consideration which is presented below:
1. Does the proposed amendment involve a significant increase in
the probability or consequences of an accident previously evaluated?
Response: No
Operation of the facility in accordance with the proposed
amendment request does not involve a significant increase in the
probability or consequences of an accident previously evaluated. The
presence of soluble boron in the SFP [spent fuel pool] water being
used for criticality control does not increase the probability of a
dropped fuel assembly accident. The handling of the fuel assemblies
in the SFP has always been performed and will continue to be
performed in borated water.
There is no increase in the probability of the accidental
misloading of fuel assemblies into the SFP fuel storage racks when
considering the presence of soluble boron for criticality control.
Fuel assembly placement will continue to be controlled pursuant to
approved fuel handling procedures and in accordance with the spent
fuel storage rack limitations specified in the TS. There is no
increase in the consequences for an accidental misloading of fuel
assemblies in the SFP fuel storage racks because the criticality
analyses demonstrate that the pool will remain subcritical following
an accidental misloading.
Soluble boron credit is used to provide margin to offset
uncertainties, tolerances, and off-normal/accident conditions, and
to provide subcritical margin such that the SFP is keff maintained
less than or equal to 0.95. The plant-specific criticality analysis
results demonstrate that the spent fuel rack keff [effective
multiplication factor] will remain <1.0 (at a 95/95 percent
probability and confidence level) even with the SFP flooded with
unborated water.
There is no increase in the probability of the loss of normal
cooling to the SFP when considering the presence of soluble boron
criticality control since a high concentration of soluble boron has
always been maintained in the SFP water. A loss of normal cooling to
the SFP will result in a reactivity increase for fuel assemblies
stored in the All-Cell storage configuration. Maintaining 664 ppm
[parts per million] boron in the SFP ensures that keff remains less
than or equal to 0.95 for this accident scenario. Because adequate
soluble boron will be maintained in the SFP water the consequences
of a loss of normal cooling to the SFP will not be increased.
Therefore, the proposed changes do not involve a significant
increase in the probability or consequences of an accident
previously evaluated.
2. Does the proposed amendment create the possibility of a new
or different kind of accident from any accident previously
evaluated?
Response: No
Under the proposed amendment, no changes are being made to the
fuel storage racks themselves, to any other systems, or to the
physical structures of the primary auxiliary building. Therefore,
there are no changes proposed to the plant configuration, equipment
design, or installed equipment.
Criticality accidents in the SFP are not new or different types
of accidents. They have been analyzed in the FSAR and in fuel
storage criticality analysis reports associated with specific
license amendments. The proposed new SFP storage limitations are
those made in the new criticality analysis. They will not have a
significant effect on normal SFP operations and maintenance. The
most limiting accident scenario changes from a misloaded fresh fuel
assembly adjacent to the storage racks, to a misloaded fuel assembly
in a 1 out of 4 storage pattern. Established administrative controls
will prevent a misloading event in the SFP. Administrative controls
include use of independently prepared and reviewed fuel movement
authorization paperwork, use of qualified fuel handling operators
and oversight of fuel handling operations by an SRO [senior reactor
operator].
The current TS include a SFP boron concentration limit that
conservatively bounds the required boron concentration of the new
criticality analysis. Since soluble boron has always been maintained
in the SFP water, implementation of this requirement for SFP
criticality control purposes has no effect on normal pool operations
and maintenance. Since soluble boron has always been present in the
SFP, a dilution event has always been a possibility. The loss of
substantial amounts of soluble boron from the SFP that could lead to
keff exceeding 0.95 was evaluated as part of the analyses in support
of this license amendment request. The evaluation demonstrates that
if a dilution event were to occur, plant operators would have
sufficient time to detect and mitigate the accident before the
minimum boron concentration is reached.
Therefore, the proposed changes do not create the possibility of
a new or different kind of accident from any previously evaluated.
3. Does the proposed amendment result in a significant reduction
in a margin of safety?
Response: No
The proposed amendment uses a different methodology to ensure
the SFP will remain subcritical. The current licensing basis
requires the SFP keff be less than or equal to 0.95 when flooded
with unborated water. Approval of this license amendment request
will change licensing basis to 10 CFR 50.68, which allows credit for
soluble boron. The new methodology calculates the minimum boron
concentration to ensure the SFP keff will be less than or equal to
0.95 when flooded with borated water.
The current TS SFP boron requirement significantly exceeds the
required boron concentration determined in the new criticality
analysis. Supporting analysis determined there is sufficient time
for plant operators to detect and mitigate a boron dilution event in
the SFP. Should an undetected dilution event occur, the new
methodology also demonstrates the SFP keff will be less than 1.0
when flooded with unborated water. Therefore, the proposed changes
do not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on
this review, it appears that the three standards of 10 CFR 50.92(c) are
satisfied. Therefore, the NRC staff proposes to determine that the
amendment request involves no significant hazards consideration.
Attorney for licensee: Antonio Fernandez, Esquire, Senior Attorney,
FPL Energy Point Beach, LLC, P.O. Box 14000, Juno Beach, FL 33408-0420.
NRC Branch Chief: Lois M. James.
Order Imposing Procedures for Access to Sensitive Unclassified Non-
Safeguards Information (SUNSI) and Safeguards Information (SGI) for
Contention Preparation
FPL Energy, Point Beach, LLC, Docket Nos. 50-266 and 50-301, Point
Beach Nuclear Plant, Units 1 and 2, Town of Two Creeks, Manitowoc
County, Wisconsin
1. This order contains instructions regarding how potential parties
to the proceedings listed above may request access to documents
containing sensitive unclassified information (SUNSI and SGI).
2. Within ten (10) days after publication of this notice of
opportunity for hearing, 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 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, MD 20852. The
e-mail address for the Office of the Secretary and the Office of the
General Counsel are [email protected] and
[email protected],
[[Page 74761]]
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 this
Federal Register notice of opportunity for hearing;
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-258 (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 TWB-05-B32M, 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 email 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 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 or opportunity for 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
[[Page 74762]]
within ten (10) 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 ten
(10) 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 Sec. 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 ten (10) 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; Aug. 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. Attachment 1 to this Order summarizes the general target
schedule for processing and resolving requests under these procedures.
Dated at Rockville, Maryland, this 2nd day of December 2008.
For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
Attachment 1--General Target Schedule for Processing and Resolving
Requests for Access to Sensitive Unclassified Non-Safeguards Information
(SUNSI) and Safeguards Information (SGI) in This Proceeding
------------------------------------------------------------------------
Day Event/Activity
------------------------------------------------------------------------
0........................ Publication of Federal Register notice/other
notice of proposed action and opportunity
for hearing, including order with
instructions for access requests.
10....................... Deadline for submitting requests for access
to SUNSI and/or 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.
60....................... 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).
20....................... 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.
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.
[[Page 74763]]
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. E8-28949 Filed 12-8-08; 8:45 am]
BILLING CODE 7590-01-P