[Federal Register Volume 74, Number 218 (Friday, November 13, 2009)]
[Pages 58656-58660]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-27319]



[Docket No. 70-1374; NRC-2009-0486]

Notice of Acceptance of Renewal Application for Idaho State 
University and Opportunity To Request a Hearing, and Order Imposing 
Procedures for Access to Sensitive Unclassified Non-Safeguards 
Information (SUNSI) for Contention Preparation Special Nuclear 
Materials License SNM-1373 Pocatello, ID

AGENCY: U.S. Nuclear Regulatory Commission.

ACTION: Notice of acceptance of license renewal application and 
opportunity to request a hearing.


DATES: A request for a hearing must be filed by January 12, 2010.

FOR FURTHER INFORMATION CONTACT: Mary Adams, Senior Project Manager, 
Fuel Manufacturing Branch, Division of Fuel Cycle Safety and 
Safeguards, Office of Nuclear Material Safety and Safeguards, U.S. 
Nuclear Regulatory Commission, Mail Stop EBB-2-C40M, Washington, DC 
20555-0001. Telephone: (301) 492-3113; Fax: (301) 492-3363; e-mail: 
[email protected].


I. Introduction

    The U.S. Nuclear Regulatory Commission (NRC) has received, by 
letter dated February 27, 2009, a revised application from Idaho State 
University (ISU) requesting renewal of its Special Nuclear Materials 
(SNM) License No. SNM-1373 for a period of ten years. SNM-1373 
authorizes ISU to possess and use SNM for education, research, and 
training programs at its campus in Pocatello, Idaho. ISU had previously 
submitted a renewal application for SNM-1373 on August 27, 2008. 
However, in a letter dated December 1, 2008, the NRC requested that ISU 
revise and resubmit the renewal application by January 30, 2009, which 
date was subsequently extended to February 27, 2009. In the December 1, 
2008, communication, the NRC also indicated that, pursuant to 10 CFR 
70.38(a), ISU is permitted to continue using special nuclear material 
in accordance with the existing license SNM-1373, pending a final 
Commission decision on the renewal request. This license renewal, if 
approved, would authorize ISU to continue to possess and use SNM under 
the provisions of Title 10 of the Code of Federal Regulations (10 CFR) 
Part 70, Domestic Licensing of SNM.
    Following an administrative review, documented in a letter to ISU 
dated June 3, 2009, the NRC staff has determined that the request for 
renewal contains all essential elements and has been accepted for 
technical review, and is acceptable for docketing. The application has 
been docketed in the Docket No. 70-1374, the existing docket for 
Special Nuclear Materials License SNM-1373. The acceptance letter 
estimated that the NRC staff would complete the technical review by May 
2010. If the NRC approves the renewal application, the approval will be 
documented in renewal of NRC License No. SNM-1373. However, before 
approving the proposed amendment, the NRC will need to make the 
findings required by the Atomic Energy Act of 1954, as amended (the 
Act), and the NRC's regulations. These findings will be documented in a 
Safety Evaluation Report. Because the licensed material will be used 
for research and development and for educational purposes, renewal of 
SNM-1373 is an action that is categorically excluded from a requirement 
to prepare an environmental assessment or environmental impact 
statement, pursuant to 10 CFR 51.22(c)(14)(v).

II. Opportunity To Request a Hearing

    The NRC hereby provides notice that this is a proceeding on an 
application for the renewal of Special Nuclear Material License No. 
SNM-1373 issued to Idaho State University (ISU) in Pocatello, Idaho. 
Any person whose interest may be affected by this proceeding, and who 
desires to participate as a party, must file a request for a hearing 
and a specification of the contentions which the person seeks to have 
litigated in the hearing, in accordance with the NRC E-Filing rule, 
which the NRC promulgated on August 28, 2007 (72 FR 49139). All 
documents filed in NRC adjudicatory proceedings, including documents 
filed by interested governmental entities participating under 10 CFR 
2.315(c) and any motion or other document filed in the proceeding prior 
to the submission of a request for hearing or petition to intervene, 
must be filed in accordance with the E-Filing rule. The E-Filing rule 
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

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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 Identification (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 ViewerTM 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/applycertificates.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 technical help line, 
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 (800) 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].
    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: Rulemakings 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: Rulemakings 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, the presiding 
officer, or 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). To be timely, filings must be submitted no later 
than 11:59 p.m. Eastern Time on the due date.
    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, unless an NRC regulation or 
other law requires submission of such information. 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.
    The formal requirements for documents contained in 10 CFR 2.304(c)-
(e) must be met. If the NRC grants an electronic document exemption in 
accordance with 10 CFR 2.302(g)(3), then the requirements for paper 
documents set forth in 10 CFR 2.304(b) must be met.
    In accordance with 10 CFR 2.309(b), a request for a hearing must be 
filed by January 12, 2010. As required by 10 CFR 2.309, a petition for 
leave to intervene shall set forth with particularity the interest of 
the petitioner/requestor 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/requestor'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/requestor's interest.
    A petition for leave to intervene must also include a specification 
of the contentions that the petitioner/requestor seeks to have 
litigated in the hearing. For each contention, the petitioner/requestor 
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/requestor 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 the application. The petition 
must also include a concise statement of the alleged facts or expert 
opinions which support the position of the petitioner/requestor and on 
which the petitioner/requestor intends to rely at hearing, together 
with references to the specific sources and documents on which the 
petitioner/requestor 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/requestor believes that the application fails to contain 
information on a relevant matter as required by law,

[[Page 58658]]

the identification of each failure and the supporting reasons for the 
petitioner's/requestor's belief. Each contention must be one that, if 
proven, would entitle the petitioner/requestor to relief.
    In addition, in accordance with 10 CFR 2.309(f)(2), contentions 
must be based on documents or other information available at the time 
the request or petition is to be filed, such as the application, 
supporting safety analysis report, environmental report or other 
supporting document filed by the applicant, or otherwise available to 
the petitioner/requestor. On issues arising under the National 
Environmental Policy Act, the petitioner/requestor shall file 
contentions based on the applicant's environmental report. The 
petitioner/requestor may amend those contentions or file new 
contentions if there are data or conclusions in the NRC draft or final 
environmental impact statement or if appropriate, the environmental 
assessment and associated draft or final finding of no significant 
impact, or any supplements relating thereto, that differ significantly 
from the data or conclusions in the applicant's documents. Otherwise, 
contentions may be amended or new contentions filed after the initial 
filing only with leave of the presiding officer.
    Petitioners/requestors should, when possible, consult with each 
other in preparing contentions and combine similar subject matter 
concerns into a joint contention, for which one of the co-sponsoring 
requestors or petitioners is designated the lead representative. 
Further, in accordance with 10 CFR 2.309(f)(3), any petitioner/
requestor that wishes to adopt a contention proposed by another 
petitioner/requestor must do so, in accordance with the E-Filing rule, 
within ten days of the date the contention is filed, and designate a 
representative who shall have the authority to act for the petitioner/
    In accordance with 10 CFR 2.309(g), a request for hearing or a 
petition for leave to intervene may also address the selection of 
hearing procedures, taking into account the provisions of 10 CFR 2.310.

III. Further Information

    Documents related to this action, including the application for 
license renewal and supporting documentation, are available 
electronically at the NRC's Electronic Reading Room at http://www.nrc.gov/reading-rm/adams.html. From this site, you can access the 
NRC's Agencywide Documents Access and Management System (ADAMS), which 
provides text and image files of NRC's public documents. The ADAMS 
accession numbers for the documents related to this notice are:
    1. ML092730441: February 27, 2009, letter from P. Crowell, Revised 
Request for License Renewal SNM-1373; and
    2. ML091520550: June 3, 2009, letter from M. Adams to P. Crowell, 
Acceptance for Review of Application for Renewal of SNM-1373 (TAC No. 
    If you do not have access to ADAMS or if there are problems in 
accessing the documents located in ADAMS, contact the NRC Public 
Document Room (PDR) Reference staff at 1-800-397-4209, 301-415-4737 or 
by e-mail to [email protected].
    These documents may also be viewed electronically on the public 
computers located at the NRC's PDR, O1 F21, One White Flint North, 
11555 Rockville Pike, Rockville, MD 20852. The PDR reproduction 
contractor will copy documents for a fee.

Order Imposing Procedures for Access to Sensitive Unclassified Non-
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 Non-Safeguards Information (SUNSI).
    B. Within 10 days after publication of this notice of hearing and 
opportunity to petition for leave to intervene, any potential party who 
believes access to SUNSI is necessary to respond to this notice may 
request such access. A ``potential party'' is any person who intends to 
participate as a party by demonstrating standing and filing an 
admissible contention under 10 CFR 2.309. Requests for access to SUNSI 
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 to the Office of the Secretary, U.S. Nuclear Regulatory 
Commission, Washington, DC 20555-0001, Attention: Rulemakings and 
Adjudications Staff, and provide a copy to the Associate General 
Counsel for Hearings, Enforcement and Administration, Office of the 
General Counsel, Washington, DC 20555-0001. The expedited delivery or 
courier mail address for both offices is: U.S. Nuclear Regulatory 
Commission, 11555 Rockville Pike, Rockville, Maryland 20852. The e-mail 
address for the Office of the Secretary and the Office of the General 
Counsel are [email protected] and [email protected], 
respectively.\1\ The request must include the following information:

    \1\ 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 under these 
procedures should be submitted as described in this paragraph.

    (1) A description of the licensing action with a citation to this 
Federal Register notice;
    (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) 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;
    D. Based on an evaluation of the information submitted under 
paragraph C.(3) the NRC staff will determine within 10 days of receipt 
of the 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 
    E. If the NRC staff determines that the requestor satisfies both 
D.(1) and D.(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 are not limited 
to, the signing of a Non-Disclosure Agreement or Affidavit, or 
Protective Order \2\ setting forth terms and conditions to prevent the 
unauthorized or inadvertent disclosure of SUNSI by each individual who 
will be granted access to SUNSI.

    \2\ 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.

    F. Filing of Contentions. Any contentions in these proceedings that 
are based upon the information received as a result of the request made 
for SUNSI must be filed by the requestor no later than 25 days after 
the requestor is granted access to that information. However, if more 
than 25 days remain

[[Page 58659]]

between the date the petitioner is granted 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 contentions by that later deadline.
    G. Review of Denials of Access.
    (1) If the request for access to SUNSI is denied by the NRC staff 
either after a determination on standing and need for access, 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) The requester may challenge the NRC staff's adverse 
determination 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.
    H. Review of Grants of Access. 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 with the Chief Administrative Judge 
within 5 days of the notification by the NRC staff of its grant of 
    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.\3\

    \3\ Requesters should note that the filing requirements of the 
NRC's E-Filing Rule (72 FR 49139; August 28, 2007) 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 request submitted to the NRC staff under these 

    I. 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 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 6th day of November 2009.

    For the Nuclear Regulatory Commission.
Kenneth R. Hart,
Acting Secretary of the Commission.

   Attachment 1--General Target Schedule for Processing and Resolving
Requests for Access to Sensitive Unclassified Non-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) 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.
60.......................  Deadline for submitting petition for
                            intervention containing: (i) Demonstration
                            of standing; (ii) all contentions whose
                            formulation does not require access to SUNSI
                            (+25 Answers to petition for intervention;
                            +7 petitioner/requestor reply).
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 need
                            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).
25.......................  If NRC staff finds no ``need'' 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
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.
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
                            consistent with decision issuing the
                            protective order.
A + 28...................  Deadline for submission of contentions whose
                            development depends upon access to SUNSI.
                            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
                            contentions by that later deadline.
A + 53...................  (Contention receipt +25) Answers to
                            contentions whose development depends upon
                            access to SUNSI.
A + 60...................  (Answer receipt +7) Petitioner/Intervener
                            reply to answers.
>A + 60..................  Decision on contention admission.

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[FR Doc. E9-27319 Filed 11-12-09; 8:45 am]