[Federal Register Volume 78, Number 148 (Thursday, August 1, 2013)]
[Notices]
[Pages 46618-46621]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-18516]
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NUCLEAR REGULATORY COMMISSION
[Docket No. 50-228; NRC-2012-0286; License No. R-98; EA-13-097]
Order Prohibiting Operation of Aerotest Radiography and Research
Reactor
I.
Aerotest Operations, Inc. (Aerotest, the licensee), is the holder
of Facility Operating License No. R-98, issued on
[[Page 46619]]
July 2, 1965, by the U.S. Atomic Energy Commission, now the U.S.
Nuclear Regulatory Commission (NRC). Facility Operating License No. R-
98 was issued pursuant to Section 104c. of the Atomic Energy Act of
1954, as amended (AEA), and part 50 of Title 10 of the Code of Federal
Regulations (10 CFR), ``Domestic Licensing of Production and
Utilization Facilities.'' The license authorizes the operation of the
Aerotest Radiography and Research Reactor (ARRR) in accordance with the
conditions specified therein. The ARRR is located on the licensee's
site in San Ramon, California. Autoliv, Inc. is the ultimate corporate
parent of Aerotest and, therefore, has ultimate control of Aerotest's
license.
II.
Section 104d., ``Medical Therapy and Research and Development,'' of
the AEA and 10 CFR 50.38, ``Ineligibility of Certain Applicants,''
prohibit the issuance of any license for a utilization and production
facility useful in the conduct of research and development ``to any
corporation or other entity if the Commission knows or has reason to
believe it is owned, controlled, or dominated by an alien, a foreign
corporation, or a foreign government.''
Autoliv, Inc. is headquartered in Stockholm, Sweden. The majority
of Autoliv, Inc.'s board of directors and executive officers are non-
U.S. citizens. The majority of Autoliv, Inc.'s outstanding stock is
held by non-U.S. citizens. Thus, Autoliv, Inc. is a foreign corporation
for the purposes of the AEA, and its ownership of ARRR is prohibited.
Nonetheless in 2000, Autoliv, Inc. acquired Aerotest through
intermediate acquisition of several wholly owned companies. As a
result, Autoliv, Inc. now has indirect control of the Aerotest license.
Although Autoliv, Inc.'s acquisition of Aerotest constituted an
indirect transfer of control of the Aerotest license, this transfer was
not the subject of an application for prior consent of the NRC as
required by 10 CFR 50.80, ``Transfer of Licenses,'' and, therefore, the
transfer was neither reviewed nor approved by the NRC.
On October 7, 2003 (Agencywide Documents Access and Management
System (ADAMS) Accession No. ML040430495), the NRC staff issued a
letter to Autoliv instructing Autoliv to develop a full divestiture
plan or partial divestiture and negation action plan and to report
progress on the plan every six months thereafter. Autoliv developed a
plan but was not able to divest Aerotest of foreign ownership and
control.
By letter dated February 28, 2005, as supplemented by letters dated
May 5, 2008; March 9, July 21, and September 4, 2009; and January 7,
2010 (ADAMS Accession Nos. ML13120A434, ML103370137, ML120900629,
ML092080163, ML092600267, ML100140375, respectively), Aerotest applied
for renewal of the ARRR operating license. The licensee has been
operating under the timely renewal provisions of 10 CFR 2.109, ``Effect
of Timely Renewal Application,'' since the expiration of the license on
April 16, 2005. Upon review of the renewal application, the NRC staff
noted that Aerotest still did not satisfy the requirements of Section
104d. of the AEA and 10 CFR 50.38. On July 9, 2009 (ADAMS Accession No.
ML090830578), the NRC issued a proposed denial of the license renewal
because of the foreign ownership issue.
On July 21, 2009 (ADAMS Accession No. ML092080163), Aerotest
notified the NRC that Autoliv ASP, Inc. (which is wholly owned by
Autoliv, Inc.) and X-Ray Industries, Inc., had entered into a non-
binding letter of intent for the sale of the ARRR to X-Ray Industries,
Inc. On January 7, 2010, as amended by letters dated January 19,
February 2, March 23, and April 1, 2010 (ADAMS Accession Nos.
ML100140375, ML100490068, ML100880295, ML100880338, ML100980153,
respectively), the NRC received a license transfer application from
Autoliv and X-Ray Industries. An NRC Order, dated July 6, 2010 (ADAMS
Accession No. ML101380228), approved the license transfer and provided
60 days (extended to October 15, 2010, through letter dated September
13, 2010 (ADAMS Accession No. ML102460245)), for the transfer to be
consummated. The Order expired without the transfer of the license.
On October 15, 2010, Aerotest voluntarily ceased day-to-day
operations (reactor operation continued for surveillances). On February
26, 2011 (ADAMS Accession No. ML103640183), the NRC responded to a
January 7, 2011 (ADAMS Accession No. ML1101180463), letter from
Aerotest by issuing Confirmatory Action Letter (CAL) No. NRR-2011-001
to Aerotest. The CAL confirmed actions Aerotest would take to prepare a
decommissioning plan, manage and provide funding for the disposition of
fuel, and file an application for a possession-only license amendment.
Aerotest did not submit a decommissioning plan and possession-only
license amendment application as discussed in the CAL. Consequently, on
January 18, 2012 (ADAMS Accession No. ML120200203), the NRC held a
public meeting with Aerotest to discuss the status of the
decommissioning plan and possession-only license amendment application.
At the conclusion of the meeting, Aerotest agreed to provide the NRC
with milestones and deliverables as part of a CAL status report due on
January 24, 2012.
In a letter dated January 24, 2012 (ADAMS Accession No.
ML12027A010), Aerotest stated that by March 31, 2012, it would inform
the NRC that either negotiations for acquisition of the reactor had
ended or negotiations had resulted in a selected buyer. In a letter
dated March 30, 2012 (ADAMS Accession No. ML12093A399), Aerotest
informed the NRC that it had selected a buyer, Nuclear Labyrinth, LLC,
and that a license transfer application would be submitted by May 30,
2012. Aerotest and Nuclear Labyrinth, LLC, submitted a license transfer
application on May 30, 2012 (ADAMS Accession Nos. ML12152A233 and
ML12180A384). The NRC accepted the application for review on August 14,
2012 (ADAMS Accession No. ML12213A486), after the applicants submitted
supplemental information on July 19, 2012 (ADAMS Accession No.
ML122021201). The NRC sent requests for additional information to the
applicants on two occasions and reviewed the applicants' responses,
dated October 15, 2012, and January 10, 2013 (ADAMS Accession Nos.
ML12291A508 and ML13015A395). A public meeting was held on December 19,
2012 (ADAMS Accession No. ML13018A003), because the October 15, 2012,
submission was insufficient. During the meeting, the NRC staff
reiterated the financial information required for NRC approval of the
indirect transfer.
III.
The NRC staff has completed its safety evaluation (ADAMS Accession
No. ML13129A001) of the license transfer request. The NRC staff has
concluded that it does not have reasonable assurance, as required by 10
CFR 50.33, ``Contents of Applications; General Information,'' that
Nuclear Labyrinth, LLC, or Aerotest Operations, Inc., would have
sufficient funding to conduct the activities authorized by the ARRR
license if the license were transferred. Consequently, the NRC staff is
denying the license transfer request. Therefore, the ARRR remains under
Autoliv, Inc.'s foreign ownership, control, and domination. Based on
the information provided above, the NRC finds that Aerotest is in
violation of Section 104d. of the AEA and 10 CFR 50.38, which prohibit
foreign ownership, control, or domination of licenses issued under 10
CFR part 50.
[[Page 46620]]
Aerotest has been out of compliance with Section 104d. of the AEA
and 10 CFR 50.38 since Autoliv, Inc. took control in 2000. Despite the
licensee's and the NRC's efforts, Aerotest continues to be out of
compliance. The NRC cannot renew the Aerotest license because Aerotest
is not authorized to hold a 10 CFR part 50 license.
Therefore, the NRC staff is denying the license renewal application
and is hereby prohibiting the licensee from operating the ARRR. In
addition, Aerotest must begin the process of decommissioning the ARRR.
IV.
Accordingly, pursuant to Sections 104c., 104d., 161b., 161i.,
161o., 182, and 186 of the AEA and the Commission's regulations in 10
CFR 2.202, ``Orders,'' and 10 CFR Part 50,
it is hereby ordered that:
I. Facility Operating License R-98 is Modified as Follows:
a. The licensee is prohibited from operating the ARRR. The licensee
shall maintain the ARRR in a shutdown condition.
b. Facility Operating License No. R-98 is amended to possession-
only status as follows:
1. Pursuant to Section 104c of the AEA and 10 CFR Part 50,
``Domestic Licensing of Production and Utilization Facilities,'' the
licensee shall possess, but neither use nor operate, the reactor at the
designated location in San Ramon, California, in accordance with the
procedures and limitations set forth in its license;
2. Pursuant to the AEA and 10 CFR Part 70, ``Domestic Licensing of
Special Nuclear Material,'' the licensee shall possess, but neither
receive nor use, up to 5.0 kilograms of contained uranium 235 in
connection with possession of the reactor; and
3. Pursuant to the AEA and 10 CFR Part 30, ``Rules of General
Applicability to Domestic Licensing of Byproduct Material,'' the
licensee shall:
i. Possess, but neither receive nor use, a 2 curie americium-
beryllium neutron startup source; and
ii. possess, but neither use or separate, byproduct material
produced by past operation of the reactor.
II. Within 30 days of the date of this order, the licensee shall submit
to the NRC:
a. An updated decommissioning plan for the ARRR that contains the
elements required by 10 CFR 50.82(b), including:
1. A decommissioning funding plan, and
2. A fuel management plan that describes the means for funding the
management of the fuel until permanent disposal.
b. If necessary, a license amendment request to modify the
technical specifications to reflect the possession-only license
conditions.
V.
In accordance with 10 CFR 2.202, the licensee must, and any other
person adversely affected by this Order may, submit an answer to this
Order within 20 days of its publication in the Federal Register (FR).
In addition, the licensee and any other person adversely affected by
this Order may request a hearing on this Order within 20 days of its
publication in the FR. Where good cause is shown, consideration will be
given to extending the time to answer or request a hearing. A request
for extension of time must be directed to the Director of the Office of
Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555-
0001 and include a statement of good cause for the extension.
VI.
All documents filed in NRC adjudicatory proceedings, including a
request for hearing, a petition for leave to intervene, any motion or
other document filed in the proceeding before the submission of a
request for hearing or petition to intervene, and documents filed by
interested governmental entities participating under 10 CFR 2.315(c),
must be filed in accordance with the NRC E-Filing rule (72 FR 49139;
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 before the filing deadline, the participant should contact the
Office of the Secretary by email at [email protected], or by
telephone at 301-415-1677, to (1) request 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 participant, 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 docket.
Information about applying for a digital ID certificate is
available on NRC's public Web site at http://www.nrc.gov/site-help/e-submittals/apply-certificates.html. System requirements for accessing
the E-Submittal server are detailed in the NRC's ``Guidance for
Electronic Submission,'' which is available on the agency's public Web
site at http://www.nrc.gov/site-help/electronic-sub-ref-mat.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. To serve
documents through the Electronic Information Exchange System, users
will be required to install a Web browser plug-in from the NRC Web
site. Further information on the Web-based submission form, including
the installation of the Web browser plug-in, is available on the NRC's
public Web site at http://www.nrc.gov/site-help/electronic-sub-ref-mat.html.
Once a participant has obtained a digital ID certificate and a
docket has been created, the participant can then submit a request for
hearing or petition for leave to intervene. Submissions should be in
Portable Document Format (PDF) in accordance with NRC guidance
available on the NRC public Web site at http://www.nrc.gov/site-help/e-submittals.html. A filing is considered complete at the time the
documents are submitted through the NRC's E-Filing system. To be
timely, an electronic filing must be submitted to the E-Filing system
no later than 11:59 p.m. eastern time on the due date. Upon receipt of
a transmission, the E-Filing system time-stamps the document and sends
the submitter an 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 that they wish to
participate in the proceeding, so that the filer need not serve the
documents on
[[Page 46621]]
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 or petition
to intervene is filed so that they can obtain access to the document
through the E-Filing system.
A person filing electronically using the agency's adjudicatory E-
Filing system may seek assistance by contacting the NRC Meta System
Help Desk through the ``Contact Us'' link on the NRC Web site at http://www.nrc.gov/site-help/e-submittals.html, by email to
[email protected], or by a toll-free call to 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, and marked
``Attention: Rulemaking and Adjudications Staff;'' or (2) courier,
express mail, or expedited delivery service addressed to the Office of
the Secretary, 16th Floor, One White Flint North, 11555 Rockville Pike,
Rockville, MD 20852, and marked ``Attention: Rulemaking and
Adjudications Staff.'' Participants filing a document in this manner
are responsible for serving the document on all other participants.
Filing is considered complete by first-class mail as of the time of
deposit in the mail, or by courier, express mail, or expedited delivery
service upon depositing the document with the provider of the service.
A presiding officer, having granted an exemption request from using E-
Filing, may require a participant or party to use E-Filing if the
presiding officer subsequently determines that the reason for granting
the exemption from use of E-Filing no longer exists.
Documents submitted in adjudicatory proceedings will appear in
NRC's electronic hearing docket, which is available to the public at
http://ehd1.nrc.gov/ehd, unless excluded pursuant to an order of the
Commission or the presiding officer. Participants are requested not to
include private personal 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.
If a person other than the licensee requests a hearing, that person
shall set forth with particularity the manner in which his or her
interest is adversely affected by this Order and shall address the
criteria set forth in 10 CFR 2.309(d). If a hearing is requested by a
licensee or a person whose interest is adversely affected, the
Commission will issue an Order designating the time and place of any
hearings. If a hearing is held, the issue to be considered at such
hearing shall be whether this Order should be sustained. In the absence
of any request for hearing, or any written approval of an extension of
time in which to request a hearing, the provisions specified in Section
IV above shall be final 20 days from the date this Order is published
in the FR without further order or proceedings. If an extension of time
for requesting a hearing has been approved, the provisions specified in
Section IV shall be final when the extension expires if a hearing
request has not been received.
It is so ordered.
Dated at Rockville, Maryland, this 24th day of July 2013.
For the Nuclear Regulatory Commission.
Roy P. Zimmerman,
Director, Office of Enforcement.
[FR Doc. 2013-18516 Filed 7-31-13; 8:45 am]
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