[Federal Register Volume 74, Number 234 (Tuesday, December 8, 2009)]
[Pages 64765-64769]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-29202]



[Docket No. 70-36; NRC-2009-0524]

Notice of License Amendment Request of Westinghouse Electric 
Company, LLC for Approval of Hematite Decommissioning Plan, Festus, 
Missouri and Opportunity To Request a Hearing

AGENCY: U.S. Nuclear Regulatory Commission.

ACTION: Notice of license amendment request and opportunity to request 
a hearing.


DATES: A request for a hearing must be filed by February 8, 2010.

Materials Decommissioning Branch, Division of Waste Management and 
Environmental Protection, Office of Federal and State Materials and 
Environmental Management Programs, U.S. Nuclear Regulatory Commission 
(NRC), Two White Flint North, Mail Stop T8 F5, 11545 Rockville Pike, 
Rockville, Maryland 20852-2738 Telephone: (301) 415-5928; fax number: 
(301) 415-5928; e-mail: [email protected].


I. Introduction

    By application dated August 12, 2009, Westinghouse Electric 
Company, LLC (WEC or the licensee) submitted the Decommissioning Plan 
(DP) for its Hematite facility in Missouri to the U.S. Nuclear 
Regulatory Commission for approval. The DP and supporting documents for 
the Hematite Decommissioning Project (HDP) are located in ADAMS 
(ML092330136). WEC previously submitted a Decommissioning Funding Plan 
(ML091950063) on July 10, 2009, and a Physical Security Plan (PSP) and 
Contingency Procedures and the Fundamental Nuclear Material Control 
Program on August 5, 2009. All three documents will be evaluated as 
part of the NRC staff's detailed technical review of the DP. Public 
access to these documents is limited. The Fundamental Decommissioning 
Funding Plan and the Nuclear Material Control Program contain financial 
or commercial information which may be withheld from disclosure in 
accordance with 10 CFR 2.390(d). The PSP contains Safeguards 
Information (SGI).
    The NRC performed an acceptance review of the DP and found it 
acceptable for the staff to begin its detailed technical review, as 
documented in a letter to WEC dated November 2, 2009 (ML093000418). If 
the NRC approves WEC's DP, the approval will be documented in an 
amendment to NRC License No. SNM-0033. However, before approving the 
proposed amendment, the NRC will need to make the findings required by 
the Atomic Energy Act of 1954, as amended, and the National 
Environmental Policy Act. These findings will be documented, 
respectively, in a Safety Evaluation Report (SER), and in a separate 
environmental analysis performed by the NRC.

III. Opportunity To Request a Hearing

    By February 8, 2010, any person(s) seeking an NRC adjudicatory 
hearing whose interest may be affected by the proposed action must file 
a request for hearing/petition to intervene. 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 should specifically explain the reasons why 
intervention should be permitted, and state the following; (1) the 
name, address and telephone number of the requestor or petitioner; (2) 
the nature of the requestor's/petitioner's right under the Act to be 
made a party to the proceeding; (3) the nature and extent of the 
requestor's/petitioner's property, financial, or other interest in the 
proceeding; and (4) the possible effect of any decision or order which 
may be entered in the proceeding on the requestor's/petitioner's 
    The petition must also identify the specific contentions which the 
petitioner/requestor seeks to have litigated at the proceeding. Each 
contention must consist of a specific statement of the issue of law or 
fact to be raised or controverted. In addition, the petitioner/
requestor shall provide a brief explanation of the bases for the 
contention and a concise statement of the alleged facts or expert 
opinion which support the contention and on which the petitioner 
intends to rely in proving the contention at the hearing. The 
petitioner must also provide references to all documents of which the 
petitioner is aware and on which the petitioner intends to rely in 
support of those facts or expert opinion. The petition must include 
sufficient information to show that a genuine dispute exists with WEC 
on a material issue of law or fact. Contentions shall be limited to 
matters within the scope of the amendment under consideration. The 
contention must be one which, if proven, would entitle the petitioner/
requestor to relief. A petitioner/

[[Page 64766]]

requestor who fails to satisfy these requirements with respect to at 
least one contention will not be permitted to participate as a party.
    Those permitted to intervene become parties to the proceeding, 
subject to any limitations in the order granting leave to intervene, 
and have the opportunity to participate fully in the conduct of the 
    All documents filed in NRC adjudicatory proceedings, including a 
request for hearing, a petition for leave to intervene, any motion or 
other document filed in the proceeding prior to the submission of a 
request for hearing or petition to intervene, and documents filed by 
interested governmental entities participating under 10 CFR 2.315(c), 
must be filed in accordance with the NRC E-Filing rule (72 FR 49139, 
Aug. 28, 2007). 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 an exemption 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 participant should 
contact the Office of the Secretary by e-mail at 
[email protected], or by telephone at (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 
(2) advise the Secretary that the participant will be submitting a 
request or petition for hearing (even in instances in which the 
participant, or its counsel or representative, already holds an NRC-
issued digital ID certificate). Based upon this information, the 
Secretary will establish an electronic docket for the hearing in this 
proceeding if the Secretary has not already established an electronic 
    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. System requirements for accessing 
the E-Submittal server are detailed in NRC's ``Guidance for Electronic 
Submission,'' which is available on the agency's public Web site at 
http://www.nrc.gov/site-help/e-submittals.html. Participants may 
attempt to use other software not listed on the Web site, but should 
note that the NRC's E-Filing system does not support unlisted software, 
and the NRC Help Desk will not be able to offer assistance in using 
unlisted software.
    If a participant is electronically submitting a document to the NRC 
in accordance with the E-Filing rule, the participant must file the 
document using the NRC's on-line, Web-based submission form. In order 
to serve documents through EIE, users will be required to install a Web 
browser plug-in from the NRC Web site. Further information on the web-
based submission form, including the installation of the Web browser 
plug-in, is available on the NRC's public Web site at http://www.nrc.gov/site-help/e-submittals.html.
    Once a participant has obtained a digital ID certificate and a 
docket has been created, the participant 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 
documents are submitted through the NRC's E-Filing system. To be 
timely, an electronic filing must be submitted to the E-Filing 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 
E-Filing 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 using the agency's adjudicatory E-
Filing system may seek assistance by contacting the NRC Meta-System 
Help Desk through the ``Contact Us'' link located on the NRC Web site 
at http://www.nrc.gov/site-help/e-submittals.html, by e-mail at 
[email protected], or by a toll-free call at (866) 672-7640. The 
NRC Meta-System Help Desk is available between 8 a.m. and 8 p.m., 
Eastern Time, Monday through Friday, excluding government holidays.
    Participants who believe that they have a good cause for not 
submitting documents electronically must file an exemption request, in 
accordance with 10 CFR 2.302(g), with their initial paper filing 
requesting authorization to continue to submit documents in paper 
format. Such filings must be submitted by: (1) First class mail 
addressed to the Office of the Secretary of the Commission, U.S. 
Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: 
Rulemaking and Adjudications Staff; or (2) courier, express mail, or 
expedited delivery service to the Office of the Secretary, Sixteenth 
Floor, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 
20852, Attention: Rulemaking and Adjudications Staff. Participants 
filing a document in this manner are responsible for serving the 
document on all other participants. Filing is considered complete by 
first-class mail as of the time of deposit in the mail, or by courier, 
express mail, or expedited delivery service upon depositing the 
document with the provider of the service. A presiding officer, having 
granted an exemption request from using E-Filing, may require a 
participant or party to use E-Filing if the presiding officer 
subsequently determines that the reason for granting the exemption from 
use of E-Filing no longer exists.
    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, or the 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.
    Petitions for leave to intervene must be filed no later than 60 
days from December 8, 2009. Non-timely filings will not be entertained 
absent a determination by the presiding officer that the petition or 
request should be granted or the contentions should be admitted, based 
on a balancing of the factors specified in 10 CFR 2.309(c)(1)(i)-

[[Page 64767]]

IV. Further Information

    Documents related to the proposed action, including the application 
for amendment 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 the 
Hematite Decommissioning Project (HDP) package (ADAMS No. ML092330136) 
and the acceptance letter to Westinghouse on the Decommissioning Plan 
Review (ML093000418). 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 at 11555 Rockville Pike, Rockville, 
Maryland 20852. The PDR reproduction contractor will copy documents for 
a fee.

Order Imposing Procedures for Access to Safeguards Information for 
Contention Preparation

    A. This Order contains instructions regarding how potential parties 
to this proceeding may request access to documents containing 
Safeguards Information (SGI). Requirements for access to SGI are 
primarily set forth in 10 CFR Parts 2 and 73. 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 who 
believes access to SGI 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 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 SGI to the Office of the Secretary, U.S. Nuclear Regulatory 
Commission, Washington, DC 20555-0001, Attention: Rulemakings and 
Adjudications Staff, and provide a copy to the Associate General 
Counsel for Hearings, Enforcement and Administration, Office of the 
General Counsel, Washington, DC 20555-0001. The expedited delivery or 
courier mail address for both offices is: U.S. Nuclear Regulatory 
Commission, 11555 Rockville Pike, Rockville, Maryland 20852. The e-mail 
address for the Office of the Secretary and the Office of the General 
Counsel are [email protected] and [email protected], 
respectively.\1\ The request must include the following information:

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

    A description of the licensing action with a citation to this 
Federal Register notice;
    (1) 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);
    (2) 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; \2\ and

    \2\ 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.

    (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.\3\

    \3\ 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.

    (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 20555-0001, by 
calling (301) 415-7232 or (301) 492-7311, or by email to 
[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 \4\ to 
the U.S. Nuclear Regulatory Commission for each individual for whom the 
request for access has been submitted; and

    \4\ This fee is subject to change pursuant to the Office of 
Personnel Management's adjustable billing rates.

    (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 in 10 CFR 73.59, the requestor should also provide a 
statement identifying which exemption the requestor is invoking and 
explaining the requestor's basis for believing that the exemption is 
applies. While processing the request, the Office of Administration, 
Personnel Security Branch, will make a final determination whether the 
claimed exemption applies. Alternatively, the requestor may contact the 
Office of Administration for an evaluation of their exemption status 
prior to submitting their request.

[[Page 64768]]

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.(3)(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 
paragraph C.(3) above, as applicable, 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 to know the SGI 
    F. 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. These conditions may 
include, but are not limited to, the signing of a Non-Disclosure 
Agreement or Affidavit, or Protective Order \5\ by each individual who 
will be granted access to SGI.

    \5\ 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.

    G. 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.
    H. Filing of Contentions. Any contentions in these proceedings that 
are based upon the information received as a result of the request made 
for SGI 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 between the date the petitioner is granted access to the 
information and
    I. The deadline for filing all other contentions (as established in 
the notice of hearing or opportunity for hearing), the petitioner may 
file its SGI contentions by that later deadline.
    J. Review of Denials of Access.
    (1) If the request for access to 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(s) have an 
opportunity to correct or explain the record.
    (3) The requester may challenge the NRC staff's or Office of 
Administration's adverse determination 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 granting access to 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 
    If challenges to the NRC staff determinations are filed, these 
procedures give way to the normal process for litigating disputes 
concerning access to information. The availability of interlocutory 
review by the Commission of orders ruling on such NRC staff 
determinations (whether granting or denying access) is governed by 10 
CFR 2.311.\6\

    \6\ 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 SGI request submitted to the NRC staff under these 

    L. The Commission expects that the NRC staff and presiding officers 
(and any other reviewing officers) will consider and resolve requests 
for access to 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 2nd day of December 2009.

    For the Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.

[[Page 64769]]

   Attachment 1--General Target Schedule for Processing and Resolving
    Requests for Access to 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 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 including the application fee for
                                the 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 SGI (+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 to know. 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
25...........................  If NRC staff finds 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.
30...........................  Deadline for NRC staff reply to motions
                                to reverse NRC staff determination(s).
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
205..........................  Deadline for petitioner to seek reversal
                                of a final adverse NRC staff
                                trustworthiness or reliability
                                determination either before the
                                presiding officer or another designated
                                officer under 10 CFR 2.705(c)(3)(iv).

[FR Doc. E9-29202 Filed 12-7-09; 8:45 am]