[Federal Register Volume 75, Number 8 (Wednesday, January 13, 2010)]
[Notices]
[Pages 1819-1830]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-485]
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NUCLEAR REGULATORY COMMISSION
[Docket No. 70-7016; CLI-10-04]
GE-Hitachi Global Laser Enrichment LLC; (GLE Commercial
Facility); 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
Commissioners: Gregory B. Jaczko, Chairman; Dale E. Klein; Kristine
L. Svinicki.
[[Page 1820]]
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 June 26, 2009, an application from
GE-Hitachi Global Laser Enrichment LLC (GLE), for a license to possess
and use source, byproduct, and special nuclear material and to enrich
natural uranium to a maximum of 8 percent U-235 by a laser-based
enrichment process. The plant, to be known as the GLE Commercial
Facility (GLE-CF), would be located approximately six miles north of
the City of Wilmington in New Hanover County, North Carolina and would
have a nominal capacity of six million separative work units (SWU) per
year.
GLE is a Delaware limited liability company and is a subsidiary of
majority owner and Delaware limited liability company GE-Hitachi
Nuclear Energy Americas LLC (GEH), which is a wholly owned subsidiary
of GE-Hitachi Nuclear Energy Holdings LLC (GEH-Holdings). GEH-Holdings
is a subsidiary of majority owner GENE Holding LLC (GENE) and minority
owner Hitachi America, Ltd. GENE, also a Delaware limited liability
company, is wholly owned by General Electric Company (GE), a United
States corporation incorporated in New York. Hitachi America is a
wholly owned subsidiary of Hitachi Ltd., a Japanese corporation. GLE
also has two minority owners, GENE and Cameco Enrichment Holdings, LLC,
a Delaware limited liability company wholly owned by Cameco US
Holdings, Inc., a Nevada corporation, which is in turn wholly owned by
Cameco Corporation, a Canadian corporation. GE, through its wholly
owned and majority owned subsidiaries, has a 51% indirect interest in
GLE. GLE's minority owners Hitachi and Cameco have indirect interests
of 25% and 24%, respectively.
On January 13, 2009, GLE was granted an exemption to file its
environmental report in advance of its license application. GLE
submitted its environmental report on January 30, 2009; and on July 13,
2009, GLE submitted a supplement to its environment report, GLE
Environmental Report Supplement 1--Early Construction. On April 9,
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 16237 (April 9, 2009). By notice
published in the Federal Register on July 24, 2009, the NRC extended
the public comment period to allow members of the public to review the
publicly available portions of the license application filed after June
26, 2009. See 74 FR 36781 (July 24, 2009). On August 6, 2009, the NRC
staff notified GLE by letter that staff had completed its acceptance
review and had determined that the application was acceptable for
formal review.
Copies of GLE's application, safety analysis report, environmental
report and supplement to its environmental report (except for portions
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 GE Laser Enrichment Facility
Licensing Web site at http://www.nrc.gov/materials/fuel-cycle-fac/laser.html#2a; (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 GLE's Environmental Report is
ML090910573; accession number for the license application is
ML091871003, and the accession number for Supplement 1 to the
Environmental Report is ML092100577; (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, GLE's initial application has been accepted for
docketing and formal review (ADAMS accession number ML091960561) and,
accordingly, the Commission is providing this notice of hearing and
notice of opportunity to intervene in GLE's application for a license
to construct and operate a laser enrichment facility. Pursuant to the
Atomic Energy Act of 1954, as amended (AEA), 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 EIS before the hearing on the
issuance of a license is completed. See Notice of Intent to Prepare an
Environmental Impact Statement for the Proposed General Electric-
Hitachi Global Laser Enrichment Uranium Enrichment Facility, 74 FR
16237 (April 9, 2009); and Extension of Public Scoping Period for the
Environmental Impact Statement for the Proposed General Electric-
Hitachi Global Laser Enrichment Facility, 74 FR 36781 (July 24, 2009).
When available, the NRC staff's SER and EIS (except for portions
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 GLE, and transcripts of prehearing
conferences and hearings (except for portions 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 GLE has
complied with the Commission's regulations and the requirements of this
Notice and Commission Order and the 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 GLE-CF; and (2) the receipt,
possession, use, delivery, and transfer of byproduct (e.g., calibration
sources), source and special nuclear material at the GLE-CF. If the
GLE-CF is licensed, prior to commencement of operations the NRC will
verify through an inspection conducted in accordance with section
193(c) of the AEA and 10 CFR 70.32(k) that the facility meets the
construction and operation requirements of the license. 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 AEA, 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 AEA. 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
[[Page 1821]]
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 March 15, 2010, 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
AEA 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 GLE'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 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 March
15, 2010. 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
[[Page 1822]]
Secretary of the Commission by March 15, 2010.
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. 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
ViewerTM to access the Electronic Information Exchange
(EIE), a component of the E-Filing system. The Workplace Forms
ViewerTM 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].
Participants who believe that they have a good cause for not
submitting documents electronically must, in accordance with 10 CFR
2.302(g), file an exemption request 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.
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, 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.
V. Commission Guidance
A. Licensing Board Determination of Contentions
The Licensing Board shall issue a decision on the admissibility of
contentions no later than June 14, 2010.
B. Novel Legal Issues
If rulings on petitions, contention admissibility, or admitted
contentions, 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.
(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
[[Page 1823]]
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 FR 41872
(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 \1\ (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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\1\ 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.\2\
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\2\ 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 March 15, 2010.................. Deadline for Requests for
Hearing; Petitions to
Intervene and Contentions; and
Requests for Limited
Participation.
Within April 13, 2010.................. Answers to Requests for
Hearing; Petitions to
Intervene and Request for
Limited Participation.
Within April 23, 2010.................. Replies to Answers regarding
Requests for Hearing;
Petitions to Intervene and
Request for Limited
Participation.
Within May 13, 2010.................... 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 Board Persons admitted or entities
order determining intervention: participating under 10 CFR
2.309(d) may submit a motion
for reconsideration (see
below, at Section VI.B).*
Within 20 days of the Licensing Board Persons admitted or entities
order determining intervention: participating under 10 CFR
2.309(d) may respond to any
motion for reconsideration.
Within 30 days of the Licensing Board Staff prepares hearing file.
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 the Motions to amend contentions;
final SER/EIS: motions for late-filed
contentions.
Within 40 days of the issuance of final
SER/EIS:
Completion of answers and
replies to motions for amended
and late-filed contentions.
Completion of discovery on
original contentions.
Deadline for summary
disposition motions on
original contentions.**
Within 50 days of the issuance of the Licensing Board decision on
final SER/EIS: admissibility of late-filed
contentions.**
[[Page 1824]]
Within 55 days of the issuance of the Licensing Board determination
final SER/EIS: as to whether resolution of
any motion for summary
disposition will serve to
expedite the proceedings.
Within 65 days of the issuance of the Answers to motions for summary
final SER/EIS: disposition identified by
Licensing Board.
Within 75 days of the issuance of the Replies to answers to motions
final SER/EIS: for summary disposition.
Within 80 days of the issuance of final Completion of discovery on late-
SER/EIS: filed contentions.
Within 105 days of the issuance of the Licensing Board decision on
final SER/EIS: summary disposition motions on
original contentions.
Within 115 days of the issuance of Direct testimony filed on
final SER/EIS: original contentions and any
amended or admitted late-filed
contentions.
Within 125 days of the issuance of Cross-examination plans filed
final SER/EIS: on 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
final SER/EIS: hearing on remaining
contentions and any amended or
admitted late-filed
contentions.
Within 205 days of the issuance of Completion of findings and
final SER/EIS: replies.
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, 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 GLE-CF in accordance with the Atomic
Energy Act of 1954, as amended. Section 274c.(1) of the AEA 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 GLE-
CF 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,
or process byproduct, source or special nuclear material in the
quantities that would be possessed at the GLE-CF. 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 fifth 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 AEA, 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. GLE'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 the disposition of depleted uranium hexafluoride tails
(depleted tails) in
[[Page 1825]]
these environmental documents, unless GLE 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 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 GLE
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, GLE must also address the health, safety, and
security issues associated with the on-site storage of depleted uranium
tails pending removal of the tails from the site for disposal or DOE
disposition.
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 imposed--
providing one way to satisfy the requirements of 10 CFR part 70--
required LES to have in place prior to commencement of construction or
operation: a minimum equity contribution of 30% of project costs from
the parents and affiliates of LES partners prior to construction of the
associated capacity; firm funding commitments for the remaining project
costs; and 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.
3. Antitrust Review
Section 105 of the AEA 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 GLE enrichment facility, the
application for which was filed after August 8, 2005, is subject to
sections 53 and 63 of the AEA and is not a production or utilization
facility within the meaning of section 105. Consequently, the NRC does
not have antitrust responsibilities for GLE. The NRC will not entertain
or consider antitrust issues in connection with the GLE application in
this proceeding.
4. Foreign Ownership
The GLE application is governed by sections 53 and 63 of the AEA,
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 AEA require, among other things, an
affirmative finding by the Commission that issuance of a license for
the GLE-CF 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 AEA, 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 GLE-CF 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 GLE'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 Timothy C.
Johnson, Senior Project Manager, Uranium Enrichment Branch, Fuel
Facility Licensing Directorate, Division of Fuel Cycle Safety and
Safeguards, Office of Nuclear Material Safety and Safeguards.
Telephone: (301) 492-3121.
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
[[Page 1826]]
of the date of the order on intervention 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
V.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. 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 SUNSI or SGI is necessary to respond to this notice
may request access to SUNSI or SGI. 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 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, SGI, or both 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.\3\ The request must include the
following information:
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\3\ 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;
(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 requester believes that the information is
necessary to enable the requester to proffer and/or adjudicate a
specific contention in this proceeding; \4\ and
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\4\ 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
requester'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.\5\
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\5\ 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 20555-0001, by
calling (301) 415-7232 or (301) 492-7311, or by e-mail to
[email protected]. The fingerprint card will be used to satisfy
the requirements of 10 CFR part 2, 10
[[Page 1827]]
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 \6\ to
the U.S. Nuclear Regulatory Commission for each individual for whom the
request for access has been submitted, and
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\6\ 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 in 10 CFR 73.59, the requester should also provide a
statement identifying which exemption the requester is invoking and
explaining the requester's basis for believing that the exemption
applies. While processing the request, the Office of Administration,
Personnel Security Branch, will make a final determination whether the
claimed exemption applies. Alternatively, the requester 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 20555-0001.
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
requester 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 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 requester 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 requester satisfies both E.(1) and E.(2) above, the NRC staff
will notify the requester in writing that access to SUNSI has been
granted. The written notification will contain instructions on how the
requester 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\7\ 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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\7\ 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 requester 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
requester 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\8\ by each individual who will be granted access to SGI.
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\8\ 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
requester, 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 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 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 requisite need, 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 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 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
[[Page 1828]]
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.\9\
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\9\ 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/SGI request submitted to the NRC staff under these
procedures.
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L. 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 7th day of January 2010.
For the Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
Chairman Gregory B. Jaczko, Offering a Separate Statement
I support issuance of this notice and order in part. As I explained
in my separate statement for the Areva notice, I welcome the
opportunity for interested members of the public to participate in our
hearing process and to have their concerns about the proposed facility
heard. I have, however, the same concerns with this hearing notice as I
expressed with regard to the Areva notice.
First, I am troubled by establishing a tight schedule that depends
on superior applicant performance and therefore may turn out to be
unrealistic. For example, the schedule reduces the time normally
allowed for applicant responses to staff requests for additional
information despite the fact that the agency has no control over the
timeliness or quality of applicant submittals. Establishing timelines
which may not be met, even through no fault of the staff, may result in
unfounded claims that the agency's process is inefficient and decrease
confidence in our licensing process.
I also believe that the numerous milestones set forth in the order
are unnecessary and overly prescriptive. With the milestones and
deadlines already provided in our regulations, the agency has the
structure in place to ensure an efficient and effective hearing
process. Importantly, those regulations allow the Boards flexibility in
adapting the hearing schedule to accommodate the complexity of the
issues and the circumstances unique to each adjudicatory proceeding. I
believe this flexibility is important and should be retained for
enrichment applications.
Recent developments highlight my concerns. Staff has informed the
Commission that issuance of the final Environmental Impact Statements
(EISs) will be delayed at least seven months in light of information
only recently submitted by Areva concerning the need to construct
additional transmission lines. Staff explained that its aggressive
review schedule is predicated upon the submittal of complete
information by Areva. Therefore, any deficiency in Areva's submittals,
like this one, can delay the staff's review and, consequently, the
hearing schedule. Events which can impact schedule are inevitable and
unpredictable given the complexity and length of these adjudications.
The schedule adjustments necessitated by these events are best handled
by the Boards responsible for the hearings without rigid Commission
deadlines which may compromise the fairness or thoroughness of the
hearing process.
In addition, as I stated in regard to the Areva notice, I believe
the order should state that the Commission, rather than the licensing
board, should preside over the mandatory hearing. Gaining experience in
this mandatory proceeding will aid the Commission in handling mandatory
hearings on new reactor applications.
Unlike the Areva notice, this notice is silent on the question of
whether the NEPA review should address terrorism. I believe that the
Commission should direct the staff to consider terrorism in its
environmental review, as we did in the Areva notice. I believe that the
Commission should have a consistent, nationwide approach to NEPA and
should discontinue the practice of addressing terrorism only for
facilities within the jurisdiction of the Ninth Circuit. This practice
creates a disparity in the public information we provide concerning the
potential impacts of a terrorist attack on our nuclear facilities based
on the arbitrary criteria of geographic location. This disparity is
highlighted when, as here, the agency simultaneously conducts NEPA
reviews for similar facilities within and outside the geographical
boundaries of the Ninth Circuit. I believe the public is disserved when
they are selectively and arbitrarily denied information on a matter of
this importance to health and safety. As a policy matter, I believe
that the Commission's commitment to transparency should no longer be
compromised, particularly now that we know that the environmental
impacts of terrorism can be analyzed and disclosed meaningfully to the
public, while appropriately protecting classified information.
Lastly, I am troubled by a matter which is related to both the
Areva and GE-Hitachi applications--the prospect of allowing applicants
to conduct construction activities prohibited by our regulations
through issuance of exemptions. In my view, the appropriate process for
allowing construction activities before licensing is the one we used
for reactor licensees--our rulemaking process. This process, which
allows stakeholder input and, therefore, offers transparency in our
decision-making process, should not be circumvented by the use of
exemptions which I believe should be reserved for circumstances unique
to a specific facility.
Commissioners Dale E. Klein and Kristine L. Svinicki, Offering a
Further Statement
We support issuance of this order, in its entirety, as we did the
AREVA notice of hearing. Areva Enrichment Services, LLC (Eagle Rock
Enrichment Facility), CLI-09-15 (July 23, 2009). The U.S. NRC Strategic
Plan recognizes that 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 NRC must strive to become more effective and
efficient in light of the increasing licensing workload and the drive
to improve performance in government. 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
[[Page 1829]]
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. Our
judgment is not altered by the Chairman's reliance on the recently-
announced events in an entirely separate proceeding--the AREVA Eagle
Rock enrichment facility application. There, NRC Staff announced a
delay in issuing the final EIS as a result of AREVA's recent submission
on the need to construct additional transmission lines. This is thin
support at best for the Chairman's unwarranted conclusion that the
Commission's deadlines ``may compromise the fairness or thoroughness of
the hearing process.'' A later date for the scheduled issuance of the
final EIS may delay completion of the hearing, but it does not
necessitate any change in the milestones since the milestones that
follow the issuance of the final EIS are measured from the date of its
issuance.
Further, we are not persuaded by the Chairman's argument regarding
consideration of terrorism under NEPA. We have considered this issue in
many proceedings,\1\ and are not prepared to abandon our carefully-
considered decisions without sufficient justification. Fundamentally,
we cannot agree with the Chairman's assertion that our approach is at
odds with the agency's commitment to transparency. At bottom, this
ruling reflects our consistent position on the requirements of NEPA and
their application.\2\ Moreover, there is no dispute that the agency has
devoted enormous resources and effort to ensure the adequate protection
of public health and safety from the risks of terrorism after the
events of September 11, 2001. Our differences with Chairman Jaczko on
this issue should not obscure this fact.
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\1\ See, e.g., AmerGen Energy Co., LLC (Oyster Creek Nuclear
Generating Station, CLI-07-8, 65 NRC 124 (2007), aff'd N.J. Dep't of
Envtl. Prot. v. NRC, 561 F.3d 132 (3d Cir. 2009).
\2\ We have complied with the Ninth Circuit's ruling for
facilities within the Ninth Circuit, as we are required to do. That
experience, however, is very limited, and does not demonstrate that
conducting environmental analyses of terrorist scenarios for the
licensing of all major facilities would be practicable or lead to
meaningful additional information.
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).
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
trustworthiness or reliability
determination either before the
presiding officer or another designated
officer under 10 CFR 2.705(c)(3)(iv).
A............................. If access granted: Issuance of presiding
officer or other designated officer
decision on motion for protective order
for access to sensitive information
(including schedule for providing
access and submission of contentions)
or decision reversing a final adverse
determination by the NRC staff.
A + 3......................... Deadline for filing executed Non-
Disclosure Affidavits. Access provided
to SUNSI and/or SGI consistent with
decision issuing the protective order.
[[Page 1830]]
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.
------------------------------------------------------------------------
[FR Doc. 2010-485 Filed 1-12-10; 8:45 am]
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