[Federal Register Volume 74, Number 145 (Thursday, July 30, 2009)]
[Notices]
[Pages 38052-38062]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-18012]
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NUCLEAR REGULATORY COMMISSION
[Docket No. 70-7015; CLI-09-15]
Notice of Receipt of Application for License; Notice of
Consideration of Issuance of License; Notice of Hearing and Commission
Order and Order Imposing Procedures for Access to Sensitive
Unclassified Non-Safeguards Information and Safeguards Information for
Contention Preparation; In the Matter of Areva Enrichment Services, LLC
(Eagle Rock Enrichment Facility)
Commissioners: Gregory B. Jaczko, Chairman, Dale E. Klein, Kristine
L. Svinicki.
I. Receipt of Application and Availability of Documents
Notice is hereby given that the U. S. Nuclear Regulatory Commission
(NRC or the Commission) received on December 30, 2008, an application,
safety analysis report, and environmental report from AREVA
[[Page 38053]]
Enrichment Services LLC (AES), for a license to possess and use source,
byproduct, and special nuclear material and to enrich natural uranium
to a maximum of 5 percent U-235 by the gas centrifuge process. The
plant, to be known as the Eagle Rock Enrichment Facility (EREF), would
be located in Bonneville County, Idaho. AES is a Delaware limited
liability corporation and is a wholly owned subsidiary of AREVA NC
Inc., which is a wholly owned subsidiary of AREVA NC SA, a part of
AREVA SA, a corporation formed under the laws of France. On March 12,
2009, the NRC staff notified AES, by letter, that staff had completed
its acceptance review and had determined that the application was
acceptable for formal review. On March 31, 2009, AES notified the NRC
of its intent to revise the license application for the EREF to expand
the capacity of the facility from 3.3 million separative work units
(SWU) per year to 6.6 million SWU per year. Thereafter, on April 23,
2009, AES filed a revised license application. On April 30, 2009, the
NRC staff notified AES that its revised license application was
accepted for review. On May 4, 2009, the NRC published notice of its
intent to prepare an Environmental Impact Statement (EIS) on the
proposed action and the opportunity for public comment on the
appropriate scope of issues to be considered in the EIS. See 74 FR
20508 (May 4, 2009).
Copies of AES's application, safety analysis report, and
environmental report (except for portions thereof subject to
withholding from public inspection in accordance with 10 CFR 2.390,
Availability of Public Records) are available for public inspection at
the Commission's Public Document Room (PDR) at One White Flint North,
11555 Rockville Pike, Rockville, Maryland 20852. These documents are
also available for review and copying using any of the following
methods: (1) Enter the NRC's Gas Centrifuge Enrichment Facility
Licensing Web site at http://www.nrc.gov/materials/fuel-cycle-fac/gas-centrifuge.html#correspondence; (2) enter the NRC's Agencywide Document
Access and Management System (ADAMS) at http://www.nrc.gov/reading-rm/adams.html, where the accession number for AES's application (including
AES's safety analysis report and AES's environmental report) is
ML090300658, and the accession number for the revised application is
ML091210558; (3) contact the PDR by calling (800) 397-4209, faxing a
request to (301) 415-3548, or sending a request by electronic mail to
[email protected]. Hard copies of the documents are available from the PDR
for a fee.
As indicated above, the AES's initial and revised application has
been accepted for docketing and formal review (ADAMS accession numbers
ML090540516 and ML091210040) and, accordingly, the Commission is
providing this notice of hearing and notice of opportunity to intervene
on AES's application for a license to construct and operate a
centrifuge enrichment facility. Pursuant to the Atomic Energy Act of
1954, as amended (Act), the NRC staff will prepare a safety evaluation
report (SER) after reviewing the application and make findings
concerning the public health and safety and common defense and
security. In addition, pursuant to the National Environmental Policy
Act of 1969 (NEPA) and the Commission's regulations in 10 CFR part 51,
the NRC staff will complete an environmental evaluation and prepare an
environmental impact statement (EIS) before the hearing on the issuance
of a license is completed. See Notice of Intent and Opportunity to
Provide Written Comments AREVA Enrichment Services LLC Eagle Rock
Enrichment Facility, Idaho Falls, ID, 74 FR20508 (May 4, 2009).
In San Luis Obispo Mothers for Peace v. NRC, 449 F.3d 1016, 1028
(9th Cir. 2006), cert. denied, 127 S. Ct. 1124 (2007), the United
States Court of Appeals for the Ninth Circuit held that the NRC NEPA
analysis performed as a result of an NRC licensing decision should
consider the potential environmental consequences, if any, were a
terrorist attack on the facility under review to occur. The Ninth
Circuit's holding is in sharp contrast to the position the NRC has
consistently taken with respect to this issue, i.e., that NEPA does not
require the NRC to consider the environmental consequences of
hypothetical terrorist attacks on NRC-licensed facilities. See AmerGen
Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-07-08,
65 NRC 124, 129 (2007). The Third Circuit recently upheld the NRC's
approach. See New Jersey Dep't of Envtl. Prot. v. NRC, 561 F.3d 132 (3d
Cir. 2009) (upholding the NRC's Oyster Creek decision). Nonetheless, as
of this writing, the Commission remains bound by Ninth Circuit law
when, as here, the agency is considering facilities located within the
Ninth Circuit's jurisdiction. As the proposed location for the EREF is
within the jurisdictional boundaries of the Ninth Circuit, the
Commission is obligated to ensure that the EIS prepared by the NRC
staff considers the NEPA-terrorism issue as mandated in San Luis Obispo
Mothers for Peace, supra.
Accordingly, in keeping with the Commission's directive in Pacific
Gas & Electric Co., (Diablo Canyon Power Plant Independent Spent Fuel
Storage Installation), CLI-07-11, 65 NRC 148 (2007),\1\ the Commission
directs the NRC staff to address in the EIS the environmental impacts
of a terrorist attack at the EREF. To the extent practicable, the NRC
staff should base its environmental analysis on information available
in agency records and other information on the EREF design, mitigative,
and security arrangements bearing on likely environmental consequences,
consistent with the requirements of NEPA, the Ninth Circuit's decision,
and the regulations for the protection of sensitive and safeguards
information.
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\1\ In San Luis Obispo Mothers for Peace, the Ninth Circuit
explicitly left to the Commission's discretion the manner in which
the NRC reviews the NEPA-terrorism issues with respect to the NRC's
consideration of the merits and procedural approach.
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The NRC staff may rely, where appropriate, on qualitative rather
than quantitative considerations. In addition, the NRC should rely on
as much public information as practicable and make public as much of
its environmental analysis as feasible recognizing, however, that it
may prove necessary to withhold some facts underlying the staff's
findings and conclusions as ``safeguards'' information, classified
Restricted Data or National Security Information, or sensitive
unclassified non-safeguards information. Further guidance on how the
NRC treats NEPA-terrorism contentions is available in the Diablo Canyon
docket. See, e.g., CLI-08-26, 68 NRC -- (Oct. 23, 2008); CLI-08-8, 67
NRC 193 (2008); CLI-08-1, 67 NRC 1 (2008). The Diablo Canyon proceeding
is again before the Ninth Circuit. See San Luis Obispo Mothers for
Peace v. NRC, No. 08-75058 (9th Cir.).
When available, the NRC staff's SER and EIS (except for portions
thereof subject to withholding from public inspection in accordance
with 10 CFR 2.390) will also be placed in the PDR and in ADAMS. Copies
of correspondence between the NRC and AES, and transcripts of
prehearing conferences and hearings (except for portions thereof
subject to withholding from public inspection in accordance with 10 CFR
2.390) similarly will be made available to the public.
If, following the hearing, the Commission is satisfied that AES has
complied with the Commission's regulations and the requirements of this
Notice and Commission Order and the
[[Page 38054]]
Commission finds that the application satisfies the applicable
standards set forth in 10 CFR parts 30, 40, and 70, a single license
will be issued authorizing: (1) The construction and operation of the
Eagle Rock Enrichment Facility; and (2) the receipt, possession, use,
delivery, and transfer of byproduct (e.g., calibration sources), source
and special nuclear material at the Eagle Rock Enrichment Facility.
Prior to commencement of operations of the Eagle Rock Enrichment
Facility, if it is licensed, in accordance with section 193(c) of the
Act and 10 CFR 70.32(k), the NRC will verify through inspection that
the facility has been constructed in accordance with the requirements
of the license for such construction and operation. The inspection
findings will be published in the Federal Register.
II. Notice of Hearing
A. Pursuant to 10 CFR 70.23a and section 193 of the Act, as amended
by the Solar, Wind, Waste, and Geothermal Power Production Incentives
Act of 1990 Public Law 101-575, Sec. 5, 104 Stat. 2834, 2835-36
(codified as amended at 42 U.S.C. 2243), a hearing will be conducted
according to the rules of practice in 10 CFR part 2, subparts A, C, G,
and to the extent that classified information becomes involved, subpart
I. The hearing will be held under the authority of sections 53, 63,
189, 191, and 193 of the Act. The applicant and the NRC staff shall be
parties to the proceeding.
B. Pursuant to 10 CFR part 2, subparts C and G, a contested hearing
shall be conducted by an Atomic Safety and Licensing Board (Licensing
Board) appointed by the Chief Administrative Judge of the Atomic Safety
and Licensing Board Panel. Notice as to the membership of the Licensing
Board will be published in the Federal Register at a later date.
C. The matters of fact and law to be considered are whether the
application satisfies the standards set forth in this Notice and
Commission Order and the applicable standards in 10 CFR parts 30, 40,
and 70, and whether the requirements of NEPA and the NRC's implementing
regulations in 10 CFR part 51 have been met.
D. If this proceeding is not a contested proceeding, as defined by
10 CFR 2.4, the Licensing Board will determine the following without
conducting a de novo evaluation of the application: (1) Whether the
application and record of the proceeding contain sufficient information
to support license issuance and whether the NRC staff's review of the
application has been adequate to support findings to be made by the
Director of the Office of Nuclear Materials Safety and Safeguards, with
respect to the matters set forth in paragraph C of this section; and
(2) whether the review conducted by the NRC staff pursuant to 10 CFR
part 51 has been adequate.
E. Regardless of whether the proceeding is contested or
uncontested, the Licensing Board will, in the initial decision, in
accordance with subpart A of 10 CFR part 51: determine whether the
requirements of sections 102(2)(A), (C), and (E) of NEPA and subpart A
of 10 CFR part 51 have been complied with in the proceeding;
independently consider the final balance among conflicting factors
contained in the record of the proceeding with a view to determining
the appropriate action to be taken; and determine, after weighing the
environmental, economic, technical, and other benefits against the
environmental and other costs, and considering reasonable alternatives,
whether a license should be issued, denied, or appropriately
conditioned to protect environmental values.
F. If the proceeding becomes a contested proceeding, the Licensing
Board shall make findings of fact and conclusions of law on admitted
contentions. With respect to matters set forth in paragraph C of this
section, but not covered by admitted contentions, the Licensing Board
will make the determinations set forth in paragraph D without
conducting a de novo evaluation of the application.
III. Intervention
A. By September 28, 2009, 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 petition for leave to intervene.
Petitions for leave to intervene shall be filed in accordance with the
provisions of 10 CFR 2.309. Interested persons should consult 10 CFR
part 2, section 2.309, which is available at the NRC's PDR, located at
One White Flint North, 11555 Rockville Pike (first floor), Rockville,
MD (or call the PDR at (800) 397-4209 or (301) 415-4737). NRC
regulations are also accessible electronically from the NRC's
Electronic Reading Room on the NRC Web site at http://www.nrc.gov.
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 must provide the name, address, and
telephone number of the petitioner and specifically explain the reasons
why intervention should be permitted with particular reference to the
following factors: (1) The nature of the petitioner's right under the
Act to be made a party to the proceeding; (2) the nature and extent of
the petitioner's property, financial, or other interest in the
proceeding; and (3) the possible effect of any order that may be
entered in the proceeding on the petitioner's interest.
A petition for leave to intervene must also include a specification
of the contentions that the petitioner seeks to have litigated in the
hearing. For each contention, the petitioner must provide a specific
statement of the issue of law or fact to be raised or controverted, as
well as a brief explanation of the basis for the contention.
Additionally, the petitioner must demonstrate that the issue raised by
each contention is within the scope of the proceeding and is material
to the findings the NRC must make to support the granting of a license
in response to AES's application. The petition must also include a
concise statement of the alleged facts or expert opinions which support
the position of the petitioner and on which the petitioner intends to
rely at hearing, together with references to the specific sources and
documents on which the petitioner intends to rely. Finally, the
petition must provide sufficient information to show that a genuine
dispute exists with the applicant on a material issue of law or fact,
including references to specific portions of the application that the
petitioner disputes and the supporting reasons for each dispute, or, if
the petitioner believes that the application fails to contain
information on a relevant matter as required by law, the identification
of each failure and the supporting reasons for the petitioner's belief.
Each contention must be one that, if proven, would entitle the
petitioner to relief.
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 with respect to resolution of that person's admitted
contentions, including the opportunity to present evidence and to
submit a cross-examination plan for cross-examination of witnesses,
consistent with NRC regulations, policies, and procedures. The
Licensing Board will set the time and place for any prehearing
conferences and evidentiary hearings, and the appropriate notices will
be provided.
Non-timely petitions for leave to intervene and contentions,
amended petitions, and supplemental petitions will not be entertained
absent a determination by the Commission, the
[[Page 38055]]
Licensing Board or a Presiding Officer that the petition should be
granted and/or the contentions should be admitted based upon a
balancing of the factors specified in 10 CFR 2.309(c)(1)(i)-(viii).
B. A State, county, municipality, Federally-recognized Indian
Tribe, or agencies thereof, may submit a petition to the Commission to
participate as a party under 10 CFR 2.309(d)(2). The petition should
state the nature and extent of the petitioner's interest in the
proceeding. The petition should be submitted to the Commission by
September 28, 2009. The petition must be filed in accordance with the
filing instructions in section IV, and should meet the requirements for
petitions for leave to intervene set forth in section III.A, except
that State and Federally-recognized Indian tribes do not need to
address the standing requirements in 10 CFR 2.309(d)(1) if the facility
is located within its boundaries. The entities listed above could also
seek to participate in a hearing as a nonparty pursuant to 10 CFR
2.315(c).
C. Any person who does not wish, or is not qualified, to become a
party to this proceeding may request permission to make a limited
appearance pursuant to the provisions of 10 CFR 2.315(a). A person
making a limited appearance may make an oral or written statement of
position on the issues, but may not otherwise participate in the
proceeding. A limited appearance may be made at any session of the
hearing or at any prehearing conference, subject to such limits and
conditions as may be imposed by the Licensing Board. Persons desiring
to make a limited appearance are requested to inform the Secretary of
the Commission by September 28, 2009.
IV. Electronic Submissions (E-Filing)
All documents filed in NRC adjudicatory proceedings, including a
petition for leave to intervene and proffered contentions, any motion
or other document filed in the proceeding prior to the submission of a
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 on
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 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 (or its
counsel or representative) already holds an NRC issued digital ID
certificate). Each petitioner 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/sitehelp/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 has obtained a digital ID certificate, had a
docket created, and downloaded the EIE viewer, it can then submit a
petition for leave to intervene including proffered contentions.
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 petition to intervene is
filed so that they can obtain access to the document via the E-Filing
system.
A person filing electronically using the agency's adjudicatory E-
filing system 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 electronic filing Help Desk,
which is available between 8 a.m. and 8 p.m., Eastern Time, Monday
through Friday, excluding government holidays. The toll-free help line
number is (866) 672- 7640. A person filing electronically may also seek
assistance by sending an e-mail to the NRC electronic filing Help Desk
at [email protected].
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, the 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.
V. Commission Guidance
A. Licensing Board Determination of Contentions
The Licensing Board shall issue a decision on the admissibility of
contentions no later than December 28, 2009.
B. Novel Legal Issues
If rulings on petitions, on admissibility of contentions, or the
admitted contentions themselves, raise novel legal or policy questions,
the Commission will provide early guidance and direction on the
treatment and resolution of such issues. Accordingly, the Commission
directs the Licensing Board to promptly certify to the Commission in
accordance with 10 CFR 2.319(l) and 2.323(f) all novel legal or policy
issues that would benefit from early Commission consideration should
such issues arise in this proceeding.
C. Discovery Management
(1) All parties, except the NRC staff, shall make the mandatory
disclosures required by 10 CFR 2.704(a) and (b) within forty-five (45)
days of the issuance of the Licensing Board order admitting
contentions.
(2) The Licensing Board, consistent with fairness to all parties,
should narrow the issues requiring discovery and limit discovery to no
more than one round for admitted contentions.
[[Page 38056]]
(3) All discovery against the NRC staff shall be governed by 10 CFR
2.336(b) and 2.709. The NRC staff shall comply with 10 CFR 2.336(b) no
later than 30 days after the Licensing Board order admitting
contentions and shall update the information at the same time as the
issuance of the SER or the Final Environmental Impact Statement (FEIS),
and, subsequent to the publication of the SER and FEIS, as otherwise
required by the Commission's regulations. Discovery under 10 CFR 2.709
shall not commence until the issuance of the particular document, i.e.,
SER or EIS, unless the Licensing Board, in its discretion, finds that
commencing discovery against the NRC staff on safety issues before the
SER is issued, or on environmental issues before the FEIS is issued
will expedite the hearing without adversely affecting the Staff's
ability to complete its evaluation in a timely manner.
(4) No later than 30 days before the commencement of the hearing at
which an issue is to be presented, all parties other than the NRC staff
shall make the pretrial disclosures required by 10 CFR 2.704(c).
D. Hearing Schedule
In the interest of providing a fair hearing, avoiding unnecessary
delays in NRC's review and hearing process, and producing an informed
adjudicatory record that supports the licensing determination to be
made in this proceeding, the Commission expects that both the Licensing
Board and NRC staff, as well as the applicant and other parties to this
proceeding, will follow the applicable requirements contained in 10 CFR
part 2 and guidance in the Commission's Statement of Policy on Conduct
of Adjudicatory Proceedings, CLI-98-12, 48 NRC 18 (1998) [63 FR41872
(August 5, 1998)] to the extent that such guidance is not inconsistent
with specific guidance in this Order. The guidance in the Statement of
Policy on Conduct of Adjudicatory Proceedings is intended to improve
the management and the timely completion of the proceeding and
addresses hearing schedules, parties' obligations, contentions and
discovery management. In addition, the Commission is providing the
following direction for this proceeding:
(1) The Commission directs the Licensing Board to set a schedule
for the hearing in this proceeding consistent with this Order that
establishes, as a goal, the issuance of a final Commission decision on
the pending application within two-and-one-half years (30 months) from
the date of this Order. Accordingly, the Licensing Board should issue
its decision on either the contested or mandatory hearing, or both,
held in this matter no later than 28\1/2\ months (855 days) from the
date of this Order. Formal discovery against the Staff shall be
suspended until after the Staff completes its final SER and EIS in
accordance with the direction provided in paragraph C(3) above.
(2) The evidentiary hearing with respect to issues should commence
promptly after completion of the final Staff documents (SER or EIS)
unless the Licensing Board, in its discretion, finds that starting the
hearing with respect to one or more safety issues prior to issuance of
the final SER \2\ (or one or more environmental contentions directed to
the applicant's Environmental Report) will expedite the proceeding
without adversely impacting the Staff's ability to complete its
evaluations in a timely manner.
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\2\ The Commission believes that, in the appropriate
circumstances, allowing discovery or an evidentiary hearing with
respect to safety-related issues to proceed before the final SER is
issued will serve to further the Commission's objective, as
reflected in the Statement of Policy on Conduct of Adjudicatory
Proceedings, CLI-98-12, supra, to ensure a fair, prompt, and
efficient resolution of contested issues. For example, it may be
appropriate for the Board to permit discovery against the staff and/
or the commencement of an evidentiary hearing with respect to safety
issues prior to the issuance of the final SER in cases where the
applicant has responded to the Staff's ``open items'' and there is
an appreciable lag time until the issuance of the final SER, or in
cases where the initial SER identifies only a few open items.
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(3) The Commission also believes that issuing a decision on the
pending application within about two-and-one-half years may be
reasonably achieved under the rules of practice contained in 10 CFR
part 2 and the enhancements directed by this Order. We do not expect
the Licensing Board to sacrifice fairness and sound decision-making to
expedite any hearing granted on this application. We do expect the
Licensing Board to use the applicable techniques specified in: this
Order; 10 CFR 2.332, 2.333 and 2.334; and the Commission's policy
statement on the conduct of adjudicatory proceedings (CLI-98-12, supra)
to ensure prompt and efficient resolution of contested issues. See also
Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8, 13
NRC 452 (1981).
(4) If this is a contested proceeding, the Licensing Board should
adopt the following milestones, in developing a schedule, for
conclusion of significant steps in the adjudicatory proceeding.\3\
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\3\ This schedule assumes that the SER and FEIS are issued
essentially at the same time. If these documents are not to be
issued very close in time, the Board should adopt separate schedules
but concurrently running for the safety and environmental reviews
consistent with the timeframes herein for each document.
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Within September 28, 2009......... Deadline for Requests for Hearing;
Petitions to Intervene and
Contentions; and Requests for
Limited Participation.
Within October 28, 2009........... Answers to Requests for Hearing;
Petitions to Intervene and Request
for Limited Participation.
Within November 9, 2009........... Replies to Answers regarding
Requests for Hearing; Petitions to
Intervene and Request for Limited
Participation.
Within November 27, 2009.......... Licensing Board holds Pre-hearing
Conference to hear arguments on
petitions to intervene and
contention admissibility.
Within 30 days of pre-hearing Licensing Board issues order
conference. determining intervention.
Discovery commences, except against
the Staff.
Within 10 days of the Licensing Persons admitted or entities
Board order determining participating under 10 CFR 2.309(d)
intervention. may submit a motion for
reconsideration (see below, at
Section VI.B).*
Within 20 days of the Licensing Persons admitted or entities
Board order determining participating under 10 CFR 2.309(d)
intervention. may respond to any motion for
reconsideration.
Within 30 days of the Licensing Staff prepares hearing file.
Board decision determining
intervention.
Date of issuance of final SER/EIS. Staff updates hearing file.
Discovery commences against the
Staff.
Within 20 days of the issuance of Motions to amend contentions;
the final SER/EIS. motions for late-filed contentions.
Within 40 days of the issuance of Completion of answers and replies to
final SER/EIS. motions for amended and late-filed
contentions.
Completion of discovery on original
contentions.
[[Page 38057]]
Deadline for summary disposition
motions on original contentions.**
Within 50 days of the issuance of Licensing Board decision on
the final SER/EIS. admissibility of late-filed
contentions.**
Within 55 days of the issuance of Licensing Board determination as to
the final SER/EIS. whether resolution of any motion
for summary disposition will serve
to expedite the proceedings.
Within 65 days of the issuance of Answers to motions for summary
the final SER/EIS. disposition identified by Licensing
Board.
Within 75 days of the issuance of Replies to answers to motions for
the final SER/EIS. summary disposition.
Within 80 days of the issuance of Completion of discovery on late-
final SER/EIS. filed contentions.
Within 105 days of the issuance of Licensing Board decision on summary
the final SER/EIS. disposition motions on original
contentions.
Within 115 days of the issuance of Direct testimony filed on original
final SER/EIS. contentions and any amended or
admitted late-filed contentions.
Within 125 days of the issuance of Cross-examination plans filed on
final SER/EIS. original contentions and any
amended or admitted late-filed
contentions.
Within 135 days of the issuance of Evidentiary hearing begins on
final SER/EIS. original contentions and any
amended or admitted late-filed
contentions.
Within 160 days of the issuance of Completion of evidentiary hearing on
final SER/EIS. remaining contentions and any
amended or admitted late-filed
contentions.
Within 205 days of the issuance of Completion of findings and replies.
final SER/EIS.
Within 245 days of the issuance of Licensing Board's initial
final SER/EIS. decision.***
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* Motions for reconsideration do not stay this schedule.
** No summary disposition motions on late-filed contentions are
contemplated.
*** The Licensing Board's initial decision with respect to either a
contested adjudicatory hearing or an uncontested, mandatory hearing
should be issued no later than 28\1/2\ months from the date of this
Order.
To avoid unnecessary delays in the proceeding, the Licensing Board
should not routinely grant requests for extensions of time and should
manage the schedule such that the overall hearing process is completed
within 28\1/2\ months. Although summary disposition motions are
included in the schedule above, the Licensing Board shall not entertain
motions for summary disposition under 10 CFR 2.710, unless the
Licensing Board finds that such motions, if granted, are likely to
expedite the proceeding. Unless otherwise justified, the Licensing
Board shall provide for the simultaneous filing of answers to proposed
contentions, responsive pleadings, proposed findings of fact, and other
similar submittals.
(5) Parties are obligated to comply with applicable requirements in
10 CFR part 2, unless directed otherwise by this Order or the Licensing
Board. They are also obligated in their filings before the Licensing
Board and the Commission to ensure that their arguments and assertions
are supported by appropriate and accurate references to legal authority
and factual basis, including, as appropriate, citation to the record.
Failure to do so may result in material being stricken from the record
or, in extreme circumstances, in a party being dismissed from the
proceeding.
(6) The Commission directs the Licensing Board to inform the
Commission promptly, in writing, if the Licensing Board determines that
any single milestone could be missed by more than 30 days. The
Licensing Board must include an explanation of why the milestone cannot
be met and the measures the Licensing Board will take to mitigate the
failure to achieve the milestone and restore the proceeding to the
overall schedule.
E. Commission Oversight
As in any proceeding, the Commission retains its inherent
supervisory authority over the proceeding to provide additional
guidance to the Licensing Board and participants and to resolve any
matter in controversy itself.
VI. Applicable Requirements
A. Licensing
The Commission will license and regulate byproduct, source, and
special nuclear material at the Eagle Rock Enrichment Facility in
accordance with the Atomic Energy Act of 1954, as amended. Section
274c.(1) of the Act was amended by Public Law 102-486 (October 24,
1992) to require the Commission to retain authority and responsibility
for the regulation of uranium enrichment facilities. Therefore, in
compliance with law, the Commission will be the sole licensing and
regulatory authority with respect to byproduct, source, and special
nuclear material for the Eagle Rock Enrichment Facility and with
respect to the control and use of any equipment or device in connection
therewith.
Many rules and regulations in 10 CFR Chapter I are applicable to
the licensing of a person to receive, possess, use, transfer, deliver,
and process byproduct, source and special nuclear material in the
quantities that would be possessed at the Eagle Rock Enrichment
Facility. These include 10 CFR parts 19, 20, 21, 25, 30, 40, 51, 70,
71, 73, 74, 95, 140, 170, and 171 for the licensing and regulation of
byproduct, source, and special nuclear material, including requirements
for notices to workers, reporting of defects, radiation protection,
waste disposal, decommissioning funding, and insurance.
With respect to these regulations, the Commission notes that this
is the fourth proceeding involving the licensing of an enrichment
facility. The Commission issued a number of decisions in earlier
proceedings regarding proposed sites in Homer, Louisiana (Claiborne
Enrichment Center), Eunice, New Mexico (National Enrichment Facility)
and Piketon, Ohio (American Centrifuge Plant). These final decisions,
Louisiana Energy Services (Claiborne Enrichment Center), CLI-92-7, 35
NRC 93 (1992); Louisiana Energy Services (Claiborne Enrichment Center),
CLI-97-15, 46 NRC 294 (1997); Louisiana Energy Services (Claiborne
Enrichment Center), CLI-98-3, 47 NRC 77 (1998); Louisiana Energy
Services (National Enrichment Facility), CLI-05-05, 61 NRC 22, 36
(2005); Louisiana Energy Services (National Enrichment Facility), et
al., CLI-05-17, 62 NRC 5 (2005); USEC, Inc. (American Centrifuge
Plant), CLI-07-05, 65 NRC 109 (2007); resolve a number of issues
concerning uranium enrichment licensing and may be relied upon as
precedent.
Consistent with the Act, and the Commission's regulations, the
Commission is providing the following direction for licensing uranium
enrichment facilities:
1. Environmental Issues
(a) General: 10 CFR part 51 governs the preparation of an
environmental report and an EIS for a materials license. AES's
environmental report and the NRC staff's associated EIS are to include
a statement on the alternatives to the proposed action, including a
discussion of the no-action alternative.
(b) Treatment of depleted uranium hexafluoride tails: As to the
treatment of
[[Page 38058]]
the disposition of depleted uranium hexafluoride tails (depleted tails)
in these environmental documents, unless AES demonstrates a use for
uranium in the depleted tails as a potential resource, the depleted
tails will be considered waste. The Commission has previously concluded
that depleted uranium from an enrichment facility is appropriately
classified as a low-level radioactive waste. See Louisiana Energy
Services (National Enrichment Facility), CLI-05-05, 61 NRC 22, 36
(2005). An approach for disposition of tails that is consistent with
the USEC Privatization Act, such as transfer to DOE for disposal,
constitutes a ``plausible strategy'' for disposition of the AES
depleted tails. Id. The NRC staff may consider the Department of
Energy's Final Programmatic Environmental Impact Statement for
Alternative Strategies for the Long-Term Management and Use of Depleted
Uranium Hexaflouride (DOE/EIS-0269), 64 FR 43358 (Aug. 10, 1999), in
preparing the staff's EIS. Alternatives for the disposition of depleted
uranium tails will need to be addressed in these documents. As part of
the licensing process, AES must also address the health, safety, and
security issues associated with the storage of depleted uranium tails
on site pending removal of the tails from the site for disposal or DOE
dispositioning.
2. Financial Qualifications
Review of financial qualifications for enrichment facility license
applications is governed by 10 CFR part 70. In Louisiana Energy
Services (Claiborne Enrichment Center), CLI-97-15, 46 NRC 294, 309
(1997) the Commission held that the 10 CFR part 70 financial criteria,
10 CFR 70.22(a)(8) and 70.23(a)(5), could be met by conditioning the
LES license to require funding commitments to be in place prior to
construction and operation. The specific license condition approved in
that proceeding, which addressed a minimum equity contribution of 30%
from the parents and affiliates of LES partners prior to construction
of the associated capacity and having in place long term enrichment
contracts with prices sufficient to cover both construction and
operating costs, including a return on investment, for the entire term
of the contracts prior to constructing or operating the facility, is
one way to satisfy the requirements of 10 CFR part 70.
3. Antitrust Review
Section 105 of the Act conferred on the NRC certain antitrust
responsibilities with respect to applications for section 103 or 104b.
licenses to construct or operate utilization or production facilities
filed prior to August 8, 2005. The AES enrichment facility, the
application for which was filed after August 8, 2005, is subject to
sections 53 and 63 of the Act, and is not a production or utilization
facility within the meaning of section 105. Consequently, the NRC does
not have antitrust responsibilities for AES. The NRC will not entertain
or consider antitrust issues in connection with the AES application in
this proceeding.
4. Foreign Ownership
The AES application is governed by sections 53 and 63 of the Act,
and consequently issues of foreign involvement shall be determined
pursuant to sections 57 and 69, not sections 103, 104 or 193(f).
Sections 57 and 69 of the Act require, among other things, an
affirmative finding by the Commission that issuance of a license for
the Eagle Rock Enrichment Facility will not be ``inimical to the common
defense and security.'' The requirements of sections 57 and 69 are
incorporated in 10 CFR 70.31 and 10 CFR 40.32, respectively.
5. Creditor Requirements
Pursuant to section 184 of the Act, the creditor regulations in 10
CFR 50.81 shall apply to the creation of creditor interests in
equipment, devices, or important parts thereof, capable of separating
the isotopes of uranium or enriching uranium in the isotope U-235. In
addition, the creditor regulations in 10 CFR 70.44 shall apply to the
creation of creditor interests in special nuclear material. These
creditor regulations may be augmented by license conditions as
necessary to allow ownership arrangements (such as sale and leaseback)
not covered by 10 CFR 50.81, provided it can be found that such
arrangements are not inimical to the common defense and security of the
United States.
6. Classified Information
All matters of classification of information related to the design,
construction, operation, and safeguarding of the Eagle Rock Enrichment
Facility shall be governed by classification guidance in ``DOE
Classification Guide for Isotope Separation by the Gas Centrifuge
Process,'' (June 2002); Change 1 (Sept. 2005); Change 2 (May 2007) (CG-
ICG-1); ``Joint NRC/DOE Classification Guide for Louisiana Energy
Services Gas Centrifuge Plant (U),'' Confidential RD (Jan 2008) (CG-
LCP-3A); and ``Joint NRC/DOE Class. Guide for Louisiana Energy Services
Gas Centrifuge Plant Safeguards & Security (U),'' OUO (Jan 2008) (CG-
LCP-3B), and any later versions thereof. Any person producing such
information must adhere to the criteria in CG-IGC-1, CG-LCP-3A and CG-
LCP-3B. All decisions on questions of classification or
declassification of information shall be made by appropriate
classification officials in the NRC and are not subject to de novo
review in this proceeding.
7. Access to Classified Information
Portions of AES's application for a license are classified
Restricted Data or National Security Information. Persons needing
access to those portions of the application will be required to have
the appropriate security clearance for the level of classified
information to which access is required. Access requirements apply
equally to intervenors, their witnesses and counsel, employees of the
applicant, its witnesses and counsel, NRC personnel, and others. Any
person who believes that he or she will have a need for access to
classified information for the purpose of this licensing proceeding,
including the hearing, should immediately contact the NRC, Division of
Fuel Cycle Safety and Safeguards, Washington, DC, 20555, for
information on the clearance process. Telephone calls may be made to
Breeda Reilly, Senior Project Manager, Advanced Fuel Cycle, Enrichment,
and Uranium Conversion Branch. Telephone: (301) 492-3110.
8. Obtaining NRC Security Facility Approval for Safeguarding Classified
Information Received or Developed Pursuant to 10 CFR part 95
Any person who requires possession of classified information in
connection with the licensing proceeding may process, store, reproduce,
transmit, or handle classified information only in a location for which
facility security approval has been obtained from the NRC's Division of
Security Operations (NSIR), Washington, DC, 20555. Telephone calls may
be made to A. Lynn Silvious, Chief, Information Security Branch.
Telephone: (301) 415-2214.
B. Reconsideration
The above guidance does not foreclose the applicant, any person
admitted as a party to the hearing, or an entity participating under 10
CFR 2.315(c) from litigating material factual issues necessary for
resolution of contentions in this proceeding. Persons permitted to
intervene and entities participating under 10 CFR 2.315(c) as of the
date of the order on intervention
[[Page 38059]]
may also move the Commission to reconsider any portion of section VI of
this Notice and Commission Order where there is no clear Commission
precedent or unambiguously governing statutes or regulations. Any
motion to reconsider must be filed within 10 days after the order on
intervention. The motion must contain all technical or other arguments
to support the motion. Other persons granted intervention and entities
participating under 10 CFR 2.315(c), including the applicant and the
NRC staff, may respond to motions for reconsideration within 20 days of
the order on intervention. Motions will be ruled upon by the
Commission. A motion for reconsideration does not stay the schedule set
out above in section III.D.(4). However, if the Commission grants a
motion for reconsideration, it will, as necessary, provide direction on
adjusting the hearing schedule.
VII. Notice of Intent Regarding Classified Information
As noted above, a hearing on this application will be governed by
10 CFR part 2, subparts A, C, G, and to the extent classified material
becomes involved, subpart I. Subpart I requires in accordance with 10
CFR 2.907 that the NRC staff file a notice of intent if, at the time of
publication of Notice of Hearing, it appears that it will be
impracticable for the staff to avoid the introduction of Restricted
Data or National Security Information into a proceeding. The applicant
has submitted portions of its application that are classified. The
Commission notes that, since the entire application may become part of
the record of the proceeding, the NRC staff has found it impracticable
for it to avoid the introduction of Restricted Data or National
Security Information into the proceeding.
VIII. Order Imposing Procedures for Access to Sensitive Unclassified
Non-Safeguards Information and Safeguards Information for Contention
Preparation
A. This Order contains instructions regarding how potential parties
to this proceeding may request access to documents containing sensitive
unclassified information (including Sensitive Unclassified Non-
Safeguards Information (SUNSI) and Safeguards Information (SGI)).
Requirements for access to SGI are primarily set forth in 10 CFR parts
2 and 73. The intent of this Order is to make those requirements more
specific to this proceeding; however, nothing in this Order is intended
to conflict with the SGI regulations.
B. Within 10 days after publication of this notice of hearing and
opportunity to petition for leave to intervene, 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 filing an
admissible contention under 10 CFR 2.309. Requests for access to SUNSI
or SGI submitted later than 10 days after publication will not be
considered absent a showing of good cause for the late filing,
addressing why the request could not have been filed earlier.
C. 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.\4\ The request must include the
following information:
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\4\ 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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(1) A description of the licensing action with a citation to this
Federal Register notice of hearing and opportunity to petition for
leave to intervene;
(2) 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 (C.1);
(3) If the request is for SUNSI, the identity of the individual or
entity requesting access to SUNSI and the requester's basis for the
need for the information in order to meaningfully participate in this
adjudicatory proceeding. In particular, the request must explain why
publicly-available versions of the information requested would not be
sufficient to provide the basis and specificity for a proffered
contention;
(4) If the request is for SGI, the identity of each individual who
would have access to SGI if the request is granted, including the
identity of any expert, consultant, or assistant who will aid the
requester in evaluating the SGI. In addition, the request must contain
the following information:
(a) A statement that explains each individual's ``need to know''
the SGI, as required by 10 CFR 73.2 and 10 CFR 73.22(b)(1). Consistent
with the definition of ``need to know'' as stated in 10 CFR 73.2, the
statement must explain:
(i) Specifically why the requestor believes that the information is
necessary to enable the requestor to proffer and/or adjudicate a
specific contention in this proceeding; \5\ and
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\5\ Broad SGI requests under these procedures are 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 or non-adjudicatory
access to SGI.
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(ii) The technical competence (demonstrable knowledge, skill,
training or education) of the requester to effectively utilize the
requested SGI 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 satisfies these criteria.
(b) A completed Form SF-85, ``Questionnaire for Non-Sensitive
Positions'' for each individual who would have access to SGI. The
completed Form SF-85 will be used by the Office of Administration to
conduct the background check required for access to SGI, as required by
10 CFR part 2, subpart G, and 10 CFR 73.22(b)(2), to determine the
requestor's trustworthiness and reliability. For security reasons, Form
SF-85 can only be submitted electronically through the electronic
questionnaire for investigations processing (e-QIP) Web site, a secure
Web site that is owned and operated by the Office of Personnel
Management. To obtain online access to the form, the requester should
contact the NRC's Office of Administration at 301-492-3524.\6\
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\6\ 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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(c) A completed Form FD-258 (fingerprint card), signed in original
ink, and submitted in accordance with 10 CFR 73.57(d). Copies of Form
FD-258 may be obtained by writing the Office of Information Services,
U.S. Nuclear Regulatory Commission, Washington, DC 20555-001, by
calling (301) 415-7232 or (301) 492-7311, or by e-mail to
[[Page 38060]]
[email protected]. The fingerprint card will be used to satisfy
the requirements of 10 CFR part 2, 10 CFR 73.22(b)(1), and section 149
of the Atomic Energy Act of 1954, as amended, which mandates that all
persons with access to SGI must be fingerprinted for an FBI
identification and criminal history records check;
(d) A check or money order payable in the amount of $ 200.00 \7\ to
the U.S. Nuclear Regulatory Commission for each individual for whom the
request for access has been submitted, and
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\7\ This fee is subject to change pursuant to the Office of
Personnel Management's adjustable billing rates.
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(e) If the requester or any individual who will have access to SGI
believes they belong to one or more of the categories of individuals
that are exempt from the criminal history records check and background
check requirements, as stated in 10 CFR 73.59, the requestor should
also provide a statement specifically stating which exemption the
requestor is invoking, and explaining the requestor's basis for
believing that the exemption is applicable. While processing the
request, the Office of Administration, Personnel Security Branch, will
make a final determination whether the stated exemption applies.
Alternatively, the requestor may contact the Office of Administration
for an evaluation of their exemption status prior to submitting their
request. Persons who are exempt from the background check are not
required to complete the SF-85 or Form FD-258, however, all other
requirements for access to SGI, including the need to know, are still
applicable.
Note: Copies of documents and materials required by paragraphs
(C.4)(b), (c), and (d) of this Order must be sent to the following
address:
Office of Administration, U.S. Nuclear Regulatory Commission, Personnel
Security Branch, Mail Stop TWB-05-B32M, Washington, DC 20555-0012.
These documents and materials should not 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 required
above.
D. To avoid delays in processing requests for access to SGI, the
requestor should review all submitted materials for completeness and
accuracy (including legibility) before submitting them to the NRC. The
NRC will return incomplete packages to the sender without processing.
E. Based on an evaluation of the information submitted under
paragraphs (C.3) or (C.4) above, as applicable, the NRC staff will
determine within 10 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) The requestor has established a legitimate need for access to
SUNSI or need to know the SGI requested.
F. For requests for access to SUNSI, if the NRC staff determines
that the requestor satisfies both (E.1) and (E.2) above, the NRC staff
will notify the requestor in writing that access to SUNSI has been
granted. The written notification will contain instructions on how the
requestor may obtain copies of the requested documents, and any other
conditions that may apply to access to those documents. These
conditions may include, but not be limited to, the signing of a Non-
Disclosure Agreement or Affidavit, or Protective Order \8\ setting
forth terms and conditions to prevent the unauthorized or inadvertent
disclosure of SUNSI by each individual who will be granted access to
SUNSI.
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\8\ Any motion for Protective Order or draft Non-Disclosure
Affidavit or Agreement for SUNSI must be filed with the presiding
officer or the Chief Administrative Judge if the presiding officer
has not yet been designated, within 30 days of the deadline for the
receipt of the written access request.
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G. For requests for access to SGI, if the NRC staff determines that
the requestor has satisfied both (E.1) and (E.2) above, the Office of
Administration will then determine, based upon completion of the
background check, whether the proposed recipient is trustworthy and
reliable, as required for access to SGI by 10 CFR 73.22(b). If the
Office of Administration determines that the individual or individuals
are trustworthy and reliable, the NRC will promptly notify the
requestor in writing. The notification will provide the names of
approved individuals as well as the conditions under which the SGI will
be provided. Those conditions may include, but not be limited to, the
signing of a Non-Disclosure Agreement or Affidavit, or Protective Order
\9\ by each individual who will be granted access to SGI.
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\9\ Any motion for Protective Order or draft Non-Disclosure
Affidavit or Agreement for SGI must be filed with the presiding
officer or the Chief Administrative Judge if the presiding officer
has not yet been designated, within 180 days of the deadline for the
receipt of the written access request.
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H. Release and Storage of SGI. Prior to providing SGI to the
requestor, the NRC staff will conduct (as necessary) an inspection to
confirm that the recipient's information protection system is
sufficient to satisfy the requirements of 10 CFR 73.22. Alternatively,
recipients may opt to view SGI at an approved SGI storage location
rather than establish their own SGI protection program to meet SGI
protection requirements.
I. Filing of Contentions. Any contentions in these proceedings that
are based upon the information received as a result of the request made
for SUNSI or SGI must be filed by the requestor no later than 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.
J. Review of Denials of Access.
(1) If the request for access to SUNSI or SGI is denied by the NRC
staff either after a determination on standing and need to know, or
after a determination on trustworthiness and reliability, the NRC staff
shall immediately notify the requestor in writing, briefly stating the
reason or reasons for the denial.
(2) Before the Office of Administration makes an adverse
determination regarding the proposed recipient(s) trustworthiness and
reliability for access to SGI, the Office of Administration, in
accordance with 10 CFR 2.705(c)(3)(iii), must provide the proposed
recipient(s) any records that were considered in the trustworthiness
and reliability determination, including those required to be provided
under 10 CFR 73.57(e)(1), so that the proposed recipient is provided an
opportunity to correct or explain information.
(3) The requester may challenge the NRC staff's adverse
determination with respect to access to SUNSI by filing a challenge
within 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.
(4) The requester may challenge the NRC staff's or Office of
Administration's adverse determination with respect to access to SGI by
filing a request for review in accordance with 10 CFR 2.705(c)(3)(iv).
Further appeals of decisions under this paragraph must be made pursuant
to 10 CFR 2.311.
K. Review of Grants of Access. A party other than the requester may
challenge an NRC staff determination
[[Page 38061]]
granting access to SUNSI or SGI whose release would harm that party's
interest independent of the proceeding. Such a challenge must be filed
with the Chief Administrative Judge within 5 days of the notification
by the NRC staff of its grant of access.
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.\10\
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\10\ 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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The Commission expects that the NRC staff and presiding officers
(and any other reviewing officers) will consider and resolve requests
for access to SUNSI 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.
It Is So Ordered.
Dated at Rockville, Maryland, this 23rd day of July 2009.
For the Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
Chairman Gregory B. Jaczko, offering a separate statement:
I support issuance of this Order in large part. I welcome the
important and statutorily protected opportunity for interested members
of the public to participate in our hearing process and to have their
concerns heard. This notice begins that public process and is,
therefore, an important milestone in that respect.
I am, however, troubled by the tight schedule outlined in the
Order. The timeframes outlined in the schedule are dependent upon
reduced timeframes for the applicant to respond to staff's requests for
additional information. While that may appear advantageous to the
applicant, it actually disadvantages everyone--the applicant, the staff
and the public--because we lose predictability. The agency has no
control over either the timeliness or quality of the applicant's
responses to requests for additional information. Moreover, I believe
the numerous specific timeframes provided in the order are also
unnecessary. With the milestones and specific timeframes already
provided in part 2 of our regulations, the agency currently has the
structure in place to ensure an efficient and effective hearing
process, while still providing flexibility to adapt to the dynamic
environment of adjudicatory hearings.
Finally, I believe the order should be revised to reflect that the
Commission, rather than the licensing board, should preside over the
mandatory hearing. Gaining experience through this mandatory proceeding
will aid the Commission in handling the mandatory hearings on new
reactor proceedings required for licensing decisions which are on the
horizon.
Commissioners Dale E. Klein and Kristine L. Svinicki, offering a
further statement:
We support issuance of this order, in its entirety. As noted in the
U.S. NRC Strategic Plan, initiatives such as the Government Performance
and Results Act challenge Federal agencies to become more effective and
efficient and to justify their budget requests with demonstrated
program results. The drive to improve performance in government,
coupled with increasing licensing workload, clearly indicates a need
for the agency to become more effective and efficient in light of these
demands. With this in mind, the NRC has formally adopted strategic
goals in the area of organizational excellence, including the
following: ``NRC actions are high quality, efficient, timely, and
realistic, to enable the safe and beneficial use of radioactive
materials.''
The NRC has recognized, in setting its strategic goals and through
its performance and accountability reporting, that the efficiency of
the agency's regulatory processes is important to the regulated
community and other stakeholders, including Federal, State, local, and
Tribal authorities and the public. The NRC has committed itself to
improving the timeliness of its application reviews without
compromising safety and security, and acknowledges that this is
possible provided industry submits complete, high-quality applications.
Quoting again from the NRC Strategic Plan: ``While the NRC will never
compromise safety and security for increased efficiency, the agency
works to improve the efficiency of its regulatory processes wherever
possible.''
High quality--on both the agency's and the applicant's parts--
should be, and is, the NRC's goal. The proceeding at issue here is no
exception. We believe that the schedule laid out in the order--while
demanding the requisite quality in licensee submittals--has been
demonstrated for similar applications, is achievable with no compromise
to the agency's safety and security missions, and is representative of
the performance expectations the NRC should set for itself.
Attachment 1--General Target Schedule for Processing and Resolving
Requests for Access to Sensitive Unclassified Non-Safeguards Information
and Safeguards Information in This Proceeding
------------------------------------------------------------------------
Day Event/Activity
------------------------------------------------------------------------
0........................... Publication of 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.
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).
[[Page 38062]]
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.
25.......................... If NRC staff finds no ``need,'' no ``need
to know,'' or no 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 to
SGI, 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.
>A + 60..................... Decision on contention admission.
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[FR Doc. E9-18012 Filed 7-29-09; 8:45 am]
BILLING CODE 7590-01-P