[Federal Register Volume 77, Number 195 (Tuesday, October 9, 2012)]
[Pages 61443-61446]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-24788]

[[Page 61443]]



[Docket No. 70-7025; NRC-2012-0224]

Acceptance of Application for Special Nuclear Materials License 
From Rensselaer Polytechnic Institute, Opportunity To Request a 
Hearing, and Petition for Leave To Intervene, and Commission Order 
Imposing Procedures for Access to Sensitive Unclassified Non-Safeguards 
Information for Contention Preparation

AGENCY: Nuclear Regulatory Commission.

ACTION: Acceptance of a license application; opportunity to request a 
hearing and to petition for leave to intervene, and order.


DATES: Requests for a hearing and petitions for leave to intervene must 
be filed by December 10, 2012. Any potential party as defined in 
section 2.4 of Title 10 of the Code of Federal Regulations (10 CFR) who 
believes access to sensitive unclassified non-safeguards information 
(SUNSI) is necessary to respond to this notice must request document 
access by October 19, 2012.

ADDRESSES: Please refer to Docket ID NRC-2012-0224 when contacting the 
NRC about the availability of information regarding this document. You 
may access information related to this document, which the NRC 
possesses and are publicly-available, using any of the following 
     Federal Rulemaking Web site: Go to http://www.regulations.gov and search for Docket ID NRC-2012-0224. Address 
questions about NRC dockets to Carol Gallagher; telephone: 301-492-
3668; email: [email protected].
     NRC's Agencywide Documents Access and Management System 
(ADAMS): You may access publicly-available documents online in the NRC 
Library at http://www.nrc.gov/reading-rm/adams.html. To begin the 
search, select ``ADAMS Public Documents'' and then select ``Begin Web-
based ADAMS Search.'' For problems with ADAMS, please contact the NRC's 
Public Document Room (PDR) reference staff at 1-800-397-4209, 301-415-
4737, or by email to [email protected]. The ADAMS accession number 
for each document referenced in this notice (if that document is 
available in ADAMS) is provided the first time that a document is 
referenced. The Rensselaer Polytechnic Institute (RPI) application is 
available electronically under ADAMS Accession Number ML110610468. 
Supplemental Information is also available under ADAMS Accession 
Numbers ML12192A612 and ML121920731. The May 3, 2011, acceptance letter 
from NRC's staff may be found under ADAMS Accession Number ML111180242.
     NRC's PDR: You may examine and purchase copies of public 
documents at the NRC's PDR, Room O1-F21, One White Flint North, 11555 
Rockville Pike, Rockville, Maryland 20852.

FOR FURTHER INFORMATION CONTACT: Marilyn Diaz, Project Manager, Office 
of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory 
Commission, Washington, DC 20555-0001; telephone: 301-492-3172, email: 
[email protected].


I. Introduction

    The U.S. Nuclear Regulatory Commission (NRC or the Commission) has 
accepted, for detailed technical review, a March 2, 2011, application 
for a new license for the possession and use of special nuclear 
material (SNM) for assaying spent nuclear fuel for fissile material 
inventory as part of their research program at the RPI. The applicant 
requested the new license for a term of 10 years. The license 
application (LA), if approved, would authorize the RPI to possess and 
use special nuclear material under 10 CFR part 70, ``Domestic Licensing 
of Special Nuclear Material.''

II. Discussion

    The RPI requested a license to possess and use SNM as part of their 
research program to conduct tests for the purpose of demonstrating 
methods to assay spent nuclear fuel for fissile material inventory 
using a lead slowing down spectrometer. The original application was 
submitted on March 2, 2011. By letter dated May 3, 2011, the NRC staff 
informed the applicant that the staff found the LA acceptable to begin 
a detailed technical review. The NRC staff requested the applicant to 
provide additional information essential to conducting a detailed 
technical review. The applicant submitted additional information in 
letters dated June 30, 2011, September 30, 2011, and a revised LA, 
dated March 27, 2012. The application has been docketed in Docket No. 
    If the NRC approves the LA, the basis for approval will be 
documented in a Safety Evaluation Report (SER) supporting the issuance 
of a new NRC License. The SER would contain the findings required by 
the Atomic Energy Act of 1954, as amended (the Act), and the NRC's 
regulations, for issuing an SNM license. The SER would also include a 
determination of the need to complete an Environmental Assessment based 
on the proposed action.

III. Opportunity To Request a Hearing and Leave To Intervene

    Requirements for submitting hearing requests and petitions for 
leave to intervene are found in 10 CFR 2.309, ``Hearing Requests, 
Petitions to Intervene, Requirements for Standing, and Contentions.'' 
Interested persons should consult 10 CFR 2.309, which is available at 
the NRC's PDR, located at One White Flint North, 11555 Rockville Pike, 
Room O1-F21, Rockville, Maryland 20852 (or call the PDR at 1-800-397-
4209 or 301-415-4737). The NRC regulations are accessible 
electronically from the NRC Library on the NRC's public Web site at 
    Pursuant to 10 CFR 2.309(a), any person whose interest may be 
affected by this proceeding, and who wishes to participate as a party 
in the proceeding must file a written request for hearing and petition 
for leave 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 in the proceeding and how that interest may be affected 
by the results of the proceeding. Pursuant to 10 CFR 2.309(d), the 
petition must provide the name, address, and telephone number of the 
petitioner; and explain the reasons why intervention should be 
permitted with particular reference to: (1) The nature of the 
petitioner's right under the Act to be made a party to the proceeding; 
(2) the nature and extent of the petitioner's property, financial, or 
other interest in the proceeding; and (3) the possible effect of any 
decision or order that may be entered in the proceeding on the 
petitioner's interest.
    A request for hearing or petition for leave to intervene must also 
identify specific contentions that the petitioner seeks to have 
litigated in the proceeding. As required by 10 CFR 2.309(f), 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. The petitioner also must 
demonstrate that the issue raised by each contention is within the 
scope of the proceeding, and is material to the findings that NRC must 
make to support the granting of a license in response to

[[Page 61444]]

the application. In addition, 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 the 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 LA that the petitioner 
disputes and the supporting reasons for each dispute; or, if the 
petitioner believes that the LA 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. A 
petitioner who fails to satisfy these requirements with respect to at 
least one contention will not be permitted to participate as a party.
    Those permitted to intervene become parties to the proceeding, 
subject to any limitations in the order granting leave to intervene, 
and have the opportunity to participate fully in the conduct of the 
hearing 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's regulations, policies, and procedures. The 
Licensing Board will set the time and place for any pre-hearing 
conferences and evidentiary hearings, and the appropriate notices will 
be provided.
    Petitions for leave to intervene and requests for hearing, and 
motions for leave to file new or amended contentions that are filed 
after the deadline in 10 CFR 2.309(b) will not be entertained absent a 
determination by the presiding officer that the filing demonstrates 
good cause by satisfying the following three factors in 10 CFR 
2.309(c)(1): (i) The information upon which the filing is based was not 
previously available; (ii) the information upon which the filing is 
based is materially different from information previously available; 
and (iii) the filing has been submitted in a timely fashion based on 
the availability of the subsequent information.
    A State, local governmental body, Federally-recognized Indian 
tribe, or agency thereof may submit a petition to the Commission to 
participate as a party under 10 CFR 2.309(h)(1) and (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 
December 10, 2012. The petition must be filed in accordance with the 
filing instructions in section IV of this document, and should meet the 
requirements for petitions for leave to intervene set forth in this 
section, except that under 2.309(h)(2) State and Federally-recognized 
Indian tribes do not need to address the standing requirements in 10 
CFR 2.309(d) if the facility is located within its boundaries. A State, 
local governmental body, Federally-recognized Indian tribe, or agency 
thereof may also have the opportunity to participate under 10 CFR 
    If a hearing is granted, any person who does not wish to become a 
party to the proceeding may, in the discretion of the presiding 
officer, be permitted to make a limited appearance pursuant to the 
provisions of 10 CFR 2.315(a), by making an oral or written statement 
of his or her position on the issues at any session of the hearing or 
at any pre-hearing conference, within the limits and conditions fixed 
by the presiding officer. However, that person may not otherwise 
participate in the proceeding.

IV. Electronic Submissions (E-Filing)

    All documents filed in the 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's E-Filing rule (72 FR 49139; 
August 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 10 
days prior to the filing deadline, the petitioner/requestor should 
contact the Office of the Secretary by Email at [email protected], 
or by telephone at 301-415-1677, to request: (1) A digital 
identification (ID) certificate, which allows the participant (or its 
counsel or representative) to digitally sign documents and access the 
E-Submittal server for any proceeding in which it is participating; and 
(2) advise the Secretary that the participant will be submitting a 
request or petition for hearing (even in instances in which the 
petitioner/requestor, or its counsel or representative, already holds 
an NRC-issued digital ID certificate). Based on 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 the 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 the NRC's ``Guidance for 
Electronic Submission,'' which is available on the NRC'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 Meta System 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 online, Web-based submission form. In order to 
serve documents through the Electronic Information Exchange System, 
users will be required to install a Web browser plug-in from the NRC's 
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's 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 email notice confirming receipt of the document. The 
E-Filing system also distributes an email notice that provides access 
to the document to the NRC's Office of the General Counsel and any 
others who have advised the Office of the Secretary

[[Page 61445]]

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 NRC'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's public 
Web site at http://www.nrc.gov/site-help/e-submittals.html, by email to 
[email protected], or by a toll-free call to 1-866-672-7640. 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 the 
NRC's electronic hearing docket which is available to the public at 
http://ehd1.nrc.gov/ehd/, 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.

Order Imposing Procedures for Access to Sensitive Unclassified Non-
Safeguards Information for Contention Preparation

    A. This Order contains instructions regarding how potential parties 
to this proceeding may request access to documents containing Sensitive 
Unclassified Non-Safeguards Information (SUNSI).
    B. Within 10 days after publication of this notice of acceptance 
and opportunity to request a hearing, any potential party who believes 
access to SUNSI is necessary to respond to this Notice may request such 
access. A ``potential party'' is any person who intends to participate 
as a party by demonstrating standing and filing an admissible 
contention under 10 CFR 2.309. Requests for access to SUNSI submitted 
later than 10 days after publication will not be considered, absent a 
showing of good cause for the late filing addressing why the request 
could not have been filed earlier.
    C. The requester shall submit a letter requesting permission to 
access SUNSI to the Office of the Secretary, U.S. Nuclear Regulatory 
Commission, Washington, DC 20555-0001, Attention: Rulemakings and 
Adjudications Staff; and provide a copy to the Associate General 
Counsel for Hearings, Enforcement and Administration, Office of the 
General Counsel, Washington, DC 20555-0001. The expedited delivery or 
courier mail address for both offices is: U.S. Nuclear Regulatory 
Commission, 11555 Rockville Pike, Rockville, Maryland 20852. The email 
addresses for the Office of the Secretary and the Office of the General 
Counsel are [email protected] and [email protected], 
respectively.\1\ The request must include the following information:

    \1\ While a request for Hearing or Petition to Intervene in this 
proceeding must comply with the filing requirements of the NRC's 
``E-Filing Rule,'' the initial request to access SUNSI under these 
procedures should be submitted as described in this paragraph.

    (1) A description of the licensing action with a citation to this 
Federal Register notice;
    (2) The name and address of the potential party and a description 
of the potential party's particularized interest that could be harmed 
by the action identified in C.(1); and
    (3) The identity of the individual or entity requesting access to 
SUNSI and the requestor's basis for the need for the information in 
order to meaningfully participate in this adjudicatory proceeding. In 
particular, the request must explain why publicly available versions of 
the information requested would not be sufficient to provide the basis 
and specificity for a proffered contention.
    D. Based on an evaluation of the information submitted under 
paragraph C.(3), the NRC staff will determine within 10 days of receipt 
of the request whether:
    (1) There is a reasonable basis to believe the petitioner is likely 
to establish standing to participate in this NRC proceeding, and
    (2) The requestor has established a legitimate need for access to 
    E. If the NRC staff determines that the requestor satisfies both 
D.(1) and D.(2) above, the NRC staff will notify the requestor in 
writing that access to SUNSI has been granted. The written notification 
will contain instructions on how the requestor may obtain copies of the 
requested documents, and any other conditions that may apply to access 
to those documents. These conditions may include, but are not limited 
to, the signing of a Non-Disclosure Agreement or Affidavit, or 
Protective Order \2\ setting forth terms and conditions to prevent the 
unauthorized or inadvertent disclosure of SUNSI by each individual who 
will be granted access to SUNSI.

    \2\ Any motion for Protective Order or draft Non-Disclosure 
Affidavit or Agreement for SUNSI must be filed with the presiding 
officer or the Chief Administrative Judge, if the presiding officer 
has not yet been designated, within 30 days of the deadline for the 
receipt of the written access request.

    F. Filing of Contentions. Any contentions in these proceedings that 
are based upon the information received as a result of the request made 
for SUNSI must be filed by the requestor no later than 25 days after 
the requestor is granted access to that information. However, if more 
than 25 days remain between the date the petitioner is granted access 
to the information and the deadline for filing all other contentions 
(as established in the Notice of Hearing or Opportunity for Hearing), 
the petitioner may file its SUNSI contentions by that later deadline.
    G. Review of Denials of Access.
    (1) If the request for access to SUNSI is denied by the NRC's 
staff, either after

[[Page 61446]]

a determination on standing and need for access or after a 
determination on trustworthiness and reliability, the NRC's staff shall 
immediately notify the requestor in writing, briefly stating the 
reason(s) for the denial.
    (2) The requester may challenge the NRC staff's adverse 
determination by filing a challenge within 5 days of receipt of that 
determination with: (a) The presiding officer designated in this 
proceeding; (b) if no presiding officer has been appointed, the Chief 
Administrative Judge, or if he or she is unavailable, another 
administrative judge, or an administrative law judge with jurisdiction 
pursuant to 10 CFR 2.318(a); or (c) if another officer has been 
designated to rule on information access issues, with that officer.
    H. Review of Grants of Access. A party other than the requester may 
challenge an NRC staff's determination granting access to SUNSI whose 
release would harm that party's interest independent of the proceeding. 
Such a challenge must be filed with the Chief Administrative Judge 
within 5 days of the notification by the NRC staff of its grant of 
    If challenges to the NRC staff's 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's 
determinations (whether granting or denying access) is governed by 10 
CFR 2.311.\3\

    \3\ Requesters should note that the filing requirements of the 
NRC's E-Filing Rule (72 FR 49139; August 28, 2007) apply to appeals 
of NRC staff's determinations (because they must be served on a 
presiding officer or the Commission, as applicable), but not to the 
initial SUNSI request submitted to the NRC staff under these 

    I. The Commission expects that the NRC staff and presiding officers 
(and any other reviewing officers) will consider and resolve requests 
for access to SUNSI, and motions for Protective Orders, in a timely 
fashion to minimize 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 October, 2012.

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

   Attachment 1--General Target Schedule for Processing and Resolving
Requests for Access to Sensitive Unclassified Non-Safeguards Information
                           in This Proceeding
          Day                            Event/activity
0.....................  Publication of Federal Register Notice of
                         acceptance of application and opportunity to
                         request a hearing, including order with
                         instructions for access requests.
10....................  Deadline for submitting requests for access to
                         sensitive unclassified non-safeguards
                         information (SUNSI) with information:
                         supporting the standing of a potential party
                         identified by name and address; describing the
                         need for the information for the potential
                         party to participate meaningfully in an
                         adjudicatory proceeding.
60....................  Deadline for submitting petition for
                         intervention containing: (i) demonstration of
                         standing; and (ii) all contentions whose
                         formulation does not require access to SUNSI
                         (+25 Answers to petition for intervention; +7
                         petitioner/requestor reply).
25....................  If NRC's staff finds no ``need'' or no
                         likelihood of standing, the deadline for
                         petitioner/requester to file a motion seeking a
                         ruling to reverse the NRC staff's denial of
                         access; NRC's staff files copy of access
                         determination with the presiding officer (or
                         Chief Administrative Judge or other designated
                         officer, as appropriate). If NRC's staff finds
                         ``need'' for SUNSI, the deadline for any party
                         to the proceeding whose interest independent of
                         the proceeding would be harmed by the release
                         of the information to file a motion seeking a
                         ruling to reverse the NRC staff's grant of
30....................  Deadline for NRC staff reply to motions to
                         reverse NRC staff determination(s).
40....................  (Receipt +30) If NRC staff finds standing and
                         need for SUNSI, deadline for NRC staff to
                         complete information processing and file motion
                         for Protective Order and draft Non-Disclosure
                         Affidavit. Deadline for applicant/licensee to
                         file Non-Disclosure Agreement for SUNSI.
A.....................  If access granted: Issuance of presiding officer
                         or other designated officer decision on motion
                         for Protective Order for access to sensitive
                         information (including schedule for providing
                         access and submission of contentions) or
                         decision reversing a final adverse
                         determination by the NRC staff.
A + 28................  Deadline for submission of contentions whose
                         development depends upon access to SUNSI.
                         However, if more than 25 days remain between
                         the petitioner's receipt of (or access to) the
                         information and the deadline for filing all
                         other contentions (as established in the notice
                         of hearing or opportunity for hearing), the
                         petitioner may file its SUNSI contentions by
                         that later deadline.
A + 60................  (Answer receipt +7) Petitioner/Intervener reply
                         to answers.
>A + 60...............  Decision on contention admission.

[FR Doc. 2012-24788 Filed 10-5-12; 8:45 am]