[Federal Register Volume 81, Number 127 (Friday, July 1, 2016)]
[Notices]
[Pages 43266-43292]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-15693]



[[Page 43266]]

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NUCLEAR REGULATORY COMMISSION

[NRC-2014-0077]


Final Procedures for Conducting Hearings on Conformance With the 
Acceptance Criteria in Combined Licenses

AGENCY: Nuclear Regulatory Commission.

ACTION: Final ITAAC hearing procedures.

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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) has finalized 
generic procedures for conducting hearings on whether acceptance 
criteria in combined licenses are met. These acceptance criteria are 
part of the inspections, tests, analyses, and acceptance criteria 
(ITAAC) included in the combined license for a nuclear reactor. Reactor 
operation may commence only if and after the NRC finds that these 
acceptance criteria are met. The Commission intends to use the final 
generic ITAAC hearing procedures (with appropriate modifications) in 
case-specific orders to govern hearings on conformance with the 
acceptance criteria.

DATES: These final procedures are effective July 1, 2016.

ADDRESSES: Please refer to Docket ID NRC-2014-0077 when contacting the 
NRC about the availability of information regarding this document. You 
may obtain publicly-available information related to this document 
using any of the following methods:
     Federal Rulemaking Web site: Go to http://www.regulations.gov and search for Docket ID NRC-2014-0077. Address 
questions about NRC dockets to Carol Gallagher; telephone: 301-415-
3463; email: [email protected]. For technical questions, contact 
the individual listed in the FOR FURTHER INFORMATION CONTACT section of 
this document.
     NRC's Agencywide Documents Access and Management System 
(ADAMS): You may obtain publicly-available documents online in the 
ADAMS Public Documents collection 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]. For 
the convenience of the reader, the ADAMS accession numbers are provided 
in a table in the ``Availability of Documents'' section of this 
document.
     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: Michael A. Spencer, Office of the 
General Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 
20555-0001, telephone: 301-287-9115, email: [email protected].

SUPPLEMENTARY INFORMATION: 
I. Introduction
II. Public Comments and Public Meetings
III. Differences Between the Proposed Procedures and the Final 
Procedures
    A. Early Publication of the Notice of Intended Operation
    B. Licensee Hearing Requests
    C. Deadlines and Hearing Schedule for Hearing Requests, 
Intervention Petitions, New or Amended Contentions, and Claims of 
Incompleteness After the Deadline
    D. Claims of Incompleteness
    E. Legal Contentions and Briefing of Legal Issues
    F. Motions for Extension of Time
    G. Presiding Officer for the Hearing
    H. Evidentiary Hearing Schedule
    I. Criteria for Deciding Between the Track 1 and Track 2 
Procedures
    K. APA Section 554 Provision on Eliminating the Need for a 
Hearing
    L. Contraction of Fuel Load Schedule
    M. Pre-Clearance Process for Access to SGI
    N. Development of Protective Order Templates for Access to SUNSI 
and SGI
    O. Presiding Officer for Review of SUNSI-SGI Access 
Determinations and Related Matters
    P. Mandatory Disclosures
    Q. Notifications of Relevant New Developments in the Proceeding
    R. Proposed Findings of Fact and Conclusions of Law
    S. Motions and Petitions for Reconsideration and Motions for 
Clarification
    T. Interlocutory Review
    U. Reopening the Record
    V. Interim Operation
    W. Submission, Filing, and Service of Documents
    X. Initial Decision Becoming Final Action of the Commission
IV. Previously Established Law, Regulation, and Policy Governing 
ITAAC Hearings
    A. Hearing Request
    B. Interim Operation
    C. Initial Decision
V. General Approach to ITAAC Hearing Procedure Development
    A. Use of Existing Part 2 Procedures
    B. Choice of Presiding Officer To Conduct an Evidentiary Hearing
    C. Schedule
    D. Hearing Formats
VI. Final General ITAAC Hearing Procedures
    A. Notice of Intended Operation
    1. Prima Facie Showing
    2. Claims of Incompleteness
    3. Interim Operation
    4. Hearing Requests, Intervention Petitions, and Motions for 
Leave To File New or Amended Contentions or Claims of Incompleteness 
After the Original Deadline
    5. SUNSI-SGI Access Order
    6. Filing of Documents and Time Computation
    7. Motions
    8. Notifications Regarding Relevant New Developments in the 
Proceeding
    9. Stays
    10. Interlocutory Review
    11. Licensee Hearing Requests
    B. Procedures for Hearings Involving Testimony
    1. Schedule and Format for Hearings Involving Witness Testimony
    2. Mandatory Disclosures/Role of the NRC Staff
    3. Certified Questions/Referred Rulings
    C. Procedures for Hearings Not Involving Testimony (Legal 
Contentions)
    D. Procedures for Resolving Claims of Incompleteness
VII. Availability of Documents
VIII. Plain Language Writing

I. Introduction

    The NRC promulgated part 52 of title 10 of the Code of Federal 
Regulations (CFR) on April 18, 1989 (54 FR 15372), to reform the 
licensing process for future nuclear power plant applicants. The rule 
added alternative licensing processes in 10 CFR part 52 for early site 
permits (ESPs), standard design certifications, and combined licenses 
(COLs). These were alternatives to the two-step licensing process that 
already existed in 10 CFR part 50. The processes in 10 CFR part 52 are 
intended to facilitate early resolution of safety and environmental 
issues and to enhance the safety and reliability of nuclear power 
plants through standardization. The centerpiece of 10 CFR part 52 is 
the COL, which resolves the safety and environmental issues associated 
with construction and operation before construction begins. Applicants 
for a COL are able to reference other NRC approvals (e.g., ESPs and 
design certifications) that resolve a number of safety and 
environmental issues that would otherwise need to be resolved in the 
COL proceeding.
    After the promulgation of 10 CFR part 52 in 1989, the Energy Policy 
Act of 1992 (EPAct), Public Law 102-486, added several provisions to 
the Atomic Energy Act of 1954, as amended (AEA), regarding the COL 
process, including provisions on ITAAC. The inclusion of ITAAC in the 
COL is governed by Section 185b. of the AEA, and hearings on 
conformance with the acceptance criteria in the ITAAC are governed by 
Section 189a.(1)(B) of the AEA. On December 23, 1992 (57 FR 60975), the 
Commission revised 10 CFR part 52 to

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conform to the EPAct. Further additions and revisions to the 
regulations governing hearings on conformance with the acceptance 
criteria were made in the final rule entitled ``Licenses, 
Certifications, and Approvals for Nuclear Power Plants'' (2007 part 52 
Rule) (72 FR 49352; August 28, 2007), and in the final rule entitled 
``Requirements for Maintenance of Inspections, Tests, Analyses, and 
Acceptance Criteria'' (ITAAC Maintenance Rule) (77 FR 51880; August 28, 
2012).
    The ITAAC are an essential feature of 10 CFR part 52. To issue a 
COL, the NRC must make a predictive finding that the facility will be 
constructed and operated in accordance with the license, the AEA, and 
NRC rules and regulations. The ITAAC are used to ensure that, prior to 
facility operation, the facility has been constructed and will be 
operated in accordance with the license, the AEA, and NRC rules and 
regulations. The ITAAC are verification requirements that include both 
the means of verification (the inspections, tests, or analyses) and the 
standards that must be satisfied (the acceptance criteria). Facility 
operation cannot commence until the NRC finds, under 10 CFR 52.103(g), 
that all acceptance criteria in the COL are met. Consistent with the 
NRC's historical understanding, facility operation begins with the 
loading of fuel into the reactor. After the NRC finds that the 
acceptance criteria are met, 10 CFR 52.103(h) provides that the ITAAC 
cease to be requirements either for the licensee or for license 
renewal. All of the ITAAC for a facility, including those reviewed and 
approved as part of an ESP or a design certification, are included in 
an appendix to the COL.\1\
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    \1\ See (e.g., Vogtle Unit 3 Combined License, Appendix C (ADAMS 
Accession No. ML112991102)). There are 875 ITAAC in the Vogtle Unit 
3 COL.
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    As the licensee completes the construction of structures, systems, 
and components (SSCs) subject to ITAAC, the licensee will perform the 
inspections, tests, and analyses for these SSCs and document the 
results onsite. The NRC inspectors will inspect a sample of the ITAAC 
to ensure that the ITAAC are successfully completed.\2\ This sample is 
chosen using a comprehensive selection process to provide confidence 
that both the ITAAC that have been directly inspected and the ITAAC 
that have not been directly inspected are successfully completed.
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    \2\ In addition to ITAAC for SSCs, there are ITAAC related to 
the emergency preparedness program and physical security hardware. 
The NRC will inspect the performance of all emergency preparedness 
program and physical security hardware ITAAC.
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    For every ITAAC, the licensee is required by 10 CFR 52.99(c)(1) to 
submit an ITAAC closure notification to the NRC explaining the 
licensee's basis for concluding that the inspections, tests, and 
analyses have been performed and that the acceptance criteria are met. 
These ITAAC closure notifications are submitted throughout construction 
as ITAAC are completed. Licensees are expected to ``maintain'' the 
successful completion of ITAAC after the submission of an ITAAC closure 
notification. If an event subsequent to the submission of an ITAAC 
closure notification materially alters the basis for determining that 
the inspections, tests, and analyses were successfully performed or 
that the acceptance criteria are met, then the licensee is required by 
10 CFR 52.99(c)(2) to submit an ITAAC post-closure notification 
documenting its successful resolution of the issue. The licensee must 
also notify the NRC when all ITAAC are complete as required by 10 CFR 
52.99(c)(4). These notifications, together with the results of the 
NRC's inspection process, serve as the basis for the NRC's 10 CFR 
52.103(g) finding on whether the acceptance criteria in the COL are 
met.
    One other required notification, the uncompleted ITAAC 
notification, must be submitted at least 225 days before scheduled 
initial fuel load and must describe the licensee's plans to complete 
the ITAAC that have not yet been completed. 10 CFR 52.99(c)(3). 
Specifically, 10 CFR 52.99(c)(3) requires the licensee to provide 
sufficient information, including the specific procedures and 
analytical methods to be used in performing the ITAAC, to demonstrate 
that the uncompleted inspections, tests, and analyses will be performed 
and the corresponding acceptance criteria will be met. When the 
uncompleted ITAAC are later completed, the licensee must submit an 
ITAAC closure notification pursuant to 10 CFR 52.99(c)(1).
    As the Commission stated in the ITAAC Maintenance Rule (77 FR at 
51887), the notifications required by 10 CFR 52.99(c) serve the dual 
purposes of ensuring (1) that the NRC has sufficient information to 
complete all of the activities necessary for it to find that the 
acceptance criteria are met, and (2) that interested persons will have 
access to information on both completed and uncompleted ITAAC 
sufficient to address the AEA threshold for requesting a hearing under 
Section 189a.(1)(B) on conformance with the acceptance criteria. With 
respect to uncompleted ITAAC, the Commission stated in the 2007 part 52 
Rule (72 FR at 49367) that it ``expects that any contentions submitted 
by prospective parties regarding uncompleted ITAAC would focus on any 
inadequacies of the specific procedures and analytical methods 
described by the licensee'' in its uncompleted ITAAC notification.
    The NRC regulations that directly relate to the ITAAC hearing 
process are in 10 CFR 2.105, 2.309, 2.310, 2.340, 2.341, 51.108, and 
52.103. Because 10 CFR 52.103 establishes the most important 
requirements regarding operation under a combined license, including 
basic aspects of the associated hearing process, NRC regulations often 
refer to the ITAAC hearing process as a ``proceeding under 10 CFR 
52.103.'' Additional regulations governing the ITAAC hearing process 
are in the design certification rules, which are included as appendices 
to 10 CFR part 52, for example, ``Design Certification Rule for the 
AP1000 Design,'' 10 CFR part 52, appendix D, paragraphs VI, VIII.B.5.g, 
and VIII.C.5. In addition, the Commission announced several policy 
decisions regarding the conduct of ITAAC hearings in its final policy 
statement entitled ``Conduct of New Reactor Licensing Proceedings'' 
(2008 Policy Statement) (73 FR 20963; April 17, 2008).
    While NRC regulations address certain aspects of the ITAAC hearing 
process, they do not provide detailed procedures for the conduct of an 
ITAAC hearing. As provided by 10 CFR 2.310(j), proceedings on a 
Commission finding under 10 CFR 52.103(c) and (g) shall be conducted in 
accordance with the procedures designated by the Commission in each 
proceeding. The use of case-specific orders to impose case-specific 
hearing procedures reflects the flexibility afforded to the NRC by 
Section 189a.(1)(B)(iv) of the AEA, which provides the NRC with the 
discretion to determine the appropriate procedures for an ITAAC 
hearing, whether formal or informal.\3\ A case-specific approach has 
the advantage of allowing the NRC to conduct the proceeding more 
efficiently by tailoring the procedures to the specific matters in 
controversy. In addition, the NRC can more swiftly implement lessons 
learned from the first ITAAC hearings to future proceedings. This 
approach is particularly beneficial given that this is a first-of-a-
kind hearing process.
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    \3\ Thus, ITAAC hearings are not required to comply with the 
Administrative Procedure Act (APA) procedures for formal ``on the 
record'' hearings. See 5 U.S.C. 554(a).
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    The NRC recognized, however, that the predictability and efficiency 
of the

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ITAAC hearing process would be greatly enhanced by the development, to 
the extent possible, of generalized procedures that can be quickly and 
easily adapted to the specific features of individual proceedings. 
Thus, the Commission, in its July 19, 2013, staff requirements 
memorandum (SRM) on SECY-13-0033, ``Allowing Interim Operation Under 
Title 10 of the Code of Federal Regulations Section 52.103'' (ADAMS 
Accession Nos. ML13200A115 and ML12289A928), directed the NRC staff, 
the Office of the General Counsel (OGC), and the Office of Commission 
Appellate Adjudication (OCAA) (collectively, ``the Staff'') to develop 
options for ITAAC hearing formats for Commission review and approval. 
The Commission-approved procedures described in this notice represent 
the culmination of these efforts. While the ITAAC hearing procedures 
for a particular proceeding will be established through case-specific 
orders, the generic procedures described in this notice will be the 
presumed default basis for these case-specific orders. Nonetheless, the 
Commission may, consistent with 10 CFR 2.310(j), direct that the ITAAC 
hearing be conducted in accordance with other procedures designated by 
the Commission.

II. Public Comments and Public Meetings

    Pursuant to direction from the Commission in the SRM on SECY-13-
0033, the Staff developed proposed generic ITAAC hearing procedures 
that the Staff published for comment in the Federal Register on April 
18, 2014 (79 FR 21958). The 75-day comment period closed on July 2, 
2014.
    Early in the comment period (May 21, 2014), the Staff conducted a 
public meeting to allow for an exchange of information between the 
Staff and the public regarding the proposed procedures, the rationale 
therefor, and suggestions from the public on possible alternatives to 
the approaches taken in the proposed procedures. As stated in the 
meeting notice, statements made at the public meeting were not treated 
as formal comments on the proposed procedures because the NRC held the 
public meeting to help inform the public's written comments on the 
proposed procedures. The summary of the May 21, 2014, public meeting is 
available in ADAMS under Accession No. ML14153A433, and a transcript of 
the meeting is available in ADAMS under Accession No. ML14147A200.
    Six comment letters from the following persons and entities were 
received on the proposed procedures:
     On behalf of the Nuclear Energy Institute (NEI), Ellen C. 
Ginsberg submitted comments dated July 2, 2014 (ADAMS Accession No. 
ML14190A012).
     On behalf of South Carolina Electric & Gas Company 
(SCE&G), April R. Rice submitted comments dated July 2, 2014 (ADAMS 
Accession No. ML14190A013).
     On behalf of Southern Nuclear Operating Company, Inc. 
(SNC), Brian H. Whitley submitted comments dated July 2, 2014 (ADAMS 
Accession No. ML14190A011).
     On behalf of Westinghouse Electric Company LLC 
(Westinghouse), Thomas C. Geer submitted comments dated July 1, 2014 
(ADAMS Accession No. ML14190A010).
     On behalf of Florida Power and Light Company (FPL), 
William Maher submitted comments dated July 2, 2014 (ADAMS Accession 
No. ML14190A009).
     On his own behalf, Mr. Barton Z. Cowan submitted comments 
dated July 2, 2014 (ADAMS Accession No. ML14195A275).
    Two of the commenters, NEI and SNC, requested an additional public 
meeting on the proposed procedures. While SNC did not identify any 
particular topic on which to hold a public meeting, NEI suggested 
holding a public meeting on issues associated with interim operation. 
In response to these requests and after preliminary consideration of 
the comments received, the NRC held an additional public meeting on 
September 22, 2014, to discuss seven issues associated with public 
comments on interim operation, claims of incompleteness, and early 
publication of the notice of intended operation. Mr. Marvin Lewis and 
representatives of NEI, SCE&G, SNC, and Westinghouse provided comments 
at the public meeting. The summary of the September 22, 2014, public 
meeting is available at ADAMS Accession No. ML14276A154, and a 
transcript of the meeting is available at ADAMS Accession No. 
ML14274A235. On September 23, 2014, Mr. Marvin Lewis submitted 
correspondence (ADAMS Accession No. ML14272A454) amplifying on a 
comment he made at the public meeting. On October 15, 2014, Ellen C. 
Ginsberg submitted correspondence (ADAMS Accession No. ML14289A494) on 
behalf of NEI, providing written comments on the issues that were 
discussed at the public meeting. In this letter, NEI stated that it 
closely coordinated with SNC, SCE&G, FPL, and Westinghouse 
representatives and that these companies authorized NEI to state that 
they concur in, and support, NEI's October 15, 2014, comments.
    The ``Comment Summary Report--Procedures for Conducting Hearings on 
Whether Acceptance Criteria in Combined Licenses Are Met'' (Comment 
Summary Report) (ADAMS Accession No. ML16167A464) summarizes both the 
written comments and the oral comments made at the September 22, 2014, 
public meeting. The Comment Summary Report also provides the NRC's 
responses to the public comments and describes how the proposed 
procedures were modified as a result of the comments.

III. Differences Between the Proposed Procedures and the Final 
Procedures

    The NRC has made a number of modifications to the proposed 
procedures, primarily in response to public comments. In addition, the 
proposed procedures included options for comment on several issues, and 
these options have been resolved in the final procedures. Furthermore, 
the NRC has clarified the procedures in some cases to resolve 
ambiguities or to better reflect the intent underlying a provision in 
the proposed procedures. Finally, the NRC has made editorial 
corrections and minor clarifying edits to the proposed procedures. With 
the exception of editorial corrections and minor clarifying edits, the 
changes to the proposed procedures are described as follows.

A. Early Publication of the Notice of Intended Operation

    In the proposed procedures (79 FR 21964), the NRC stated that it 
was exploring the possibility of publishing the notice of intended 
operation somewhat earlier than 210 days before scheduled fuel load 
based on a licensee's voluntary early submission of uncompleted ITAAC 
notifications. As explained in the proposed procedures, the uncompleted 
ITAAC notifications must be submitted before the notice of intended 
operation is published to provide sufficient information to petitioners 
\4\ to enable them to file contentions on uncompleted ITAAC with their 
hearing request. However, 10 CFR 52.99(c)(3) allows licensees to submit 
the uncompleted ITAAC notifications up to 225 days before scheduled 
fuel load. Given the time needed by the NRC staff to administratively 
process the uncompleted ITAAC notifications, publication of the notice 
of intended operation earlier than 210 days before

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scheduled fuel load requires submission of the uncompleted ITAAC 
notifications earlier than 225 days before scheduled fuel load.
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    \4\ As used in this notice, the word ``petitioner'' refers to 
any person who (1) is contemplating the filing of a hearing request, 
(2) has filed a hearing request but is not an admitted party, or (3) 
has had a hearing request granted.
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    The NRC requested comment on the pros and cons of early publication 
and on how early the NRC might reasonably issue the notice of intended 
operation. As discussed in Section 5.B of the Comment Summary Report, 
the NRC has decided to publish the notice of intended operation up to 
75 days earlier than 210 days before scheduled fuel load (i.e., 285 
days before scheduled fuel load) based on the licensee's voluntary 
early submission of the uncompleted ITAAC notifications. With early 
publication, all dates in the hearing schedule would be moved up 
accordingly. Thus, moving up the notice of intended operation would 
build margin into the schedule to account for a variety of possible 
delays, and the licensees currently constructing the Vogtle and V.C. 
Summer reactors have said in their written comments that it is feasible 
to submit uncompleted ITAAC notifications several months earlier than 
required. The NRC places great weight on the schedule advantages 
accruing from early publication because of the statutory directive in 
Section 189a.(1)(B)(v) of the AEA to issue the hearing decision before 
scheduled fuel load ``to the maximum possible extent.'' However, the 
NRC has decided to publish the notice of intended operation no earlier 
than 285 days before scheduled fuel load to limit the additional burden 
on participants from having a greater number of uncompleted ITAAC at 
the time the notice of intended operation is published.\5\ Other 
aspects of early publication of the notice of intended operation are 
discussed in Section V.C of this notice.
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    \5\ As explained in the Comment Summary Report, petitioners are 
not prejudiced by the requirement to file contentions on uncompleted 
ITAAC because the uncompleted ITAAC notifications are intended to 
provide sufficient information to petitioners on which to file their 
contentions. However, if there are a greater number of uncompleted 
ITAAC notifications when the notice of intended operation is 
published, there will correspondingly be a greater number of 
subsequent ITAAC closure notifications for a petitioner to examine 
to determine whether a new or amended contention is warranted. In 
addition, publishing the notice of intended operation earlier 
marginally increases the probability of new or amended contentions 
being filed based on the possibility of differences between the 
uncompleted ITAAC notifications and the later ITAAC closure 
notifications. The NRC's decision not to publish the notice of 
intended operation any earlier than 285 days before scheduled fuel 
load limits additional resource burdens that would be imposed on all 
parties by early publication. Also, the NRC is taking steps to 
minimize the additional burden to petitioners associated with a 
greater number of uncompleted ITAAC notifications, as described in 
Section 5.B of the Comment Summary Report.
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B. Licensee Hearing Requests

    As discussed in Section 4.N of the Comment Summary Report, the 
procedures have been clarified to explicitly state that a licensee 
hearing request need not satisfy the contention standards in 10 CFR 
2.309(f) or the standing requirements of 10 CFR 2.309(d). In addition, 
the procedures now include deadlines for licensee hearing requests 
filed after the deadline (20 days from formal NRC staff correspondence 
stating that a particular ITAAC has not been successfully completed) 
and NRC staff answers to licensee hearing requests (10 days after 
service of the hearing request). Finally, the procedures now state that 
licensee hearing requests that are filed before publication of the 
notice of intended operation are outside the scope of the hearing 
procedures and will be handled on a case-specific basis.

C. Deadlines and Hearing Schedule for Hearing Requests, Intervention 
Petitions, New or Amended Contentions, and Claims of Incompleteness 
After the Deadline

    In the proposed procedures (79 FR 21967), the NRC included the 
following options for comment on the time given for filing hearing 
requests, intervention petitions, and motions for leave to file new or 
amended contentions or claims of incompleteness after the deadline, and 
the time given for filing answers to these filings: (1) The petitioner 
is given 30 days from the new information to make its filing and the 
other parties have 25 days to answer. (2) The petitioner is given 20 
days from the new information to make its filing and the other parties 
have 15 days to answer. (3) The petitioner is given some period between 
20 and 30 days from the new information to make its filing and the 
other parties have some period between 15 and 25 days to answer.
    As discussed in Section 4.J of the Comment Summary Report, 
commenters suggested deadlines for these filings that were even shorter 
than the lower ends of the ranges provided for comment in the proposed 
procedures. The NRC agrees with the commenters that deadlines need to 
be as short as reasonably possible to limit the potential for delay. 
However, for the reasons discussed in the Comment Summary Report, the 
NRC believes that the deadlines suggested by the commenters would not 
necessarily be feasible, in the ordinary case, given the issues that 
the participants would need to address in filings after the deadline 
and answers thereto.
    Therefore, the NRC has decided that the deadline for hearing 
requests, intervention petitions, and motions for leave to file new or 
amended contentions or claims of incompleteness that are filed after 
the deadline will be 20 days after the event giving rise to the need 
for the filing.\6\ In the context of claims of incompleteness, this 20-
day period will be triggered by the date that the ITAAC notification 
(or a redacted version thereof) becomes available to the public. For 
answers to these filings after the deadline, the NRC has decided that a 
14-day period is reasonable. Notwithstanding these deadlines, the NRC 
encourages participants to file as soon as possible before these 
deadlines if it is possible for them to do so.
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    \6\ If a petitioner submitting a hearing request, intervention 
petition, or motion for leave to file new or amended contentions or 
claims of incompleteness after the deadline believes that some 
aspect of operation must be stayed until action is taken in the 
hearing process, then that petitioner has the burden of submitting 
its stay request simultaneously with the hearing request, 
intervention petition, or motion for leave to file new or amended 
contentions or claims of incompleteness. If the petitioner does not 
include a stay request with its pleading, the petitioner will have 
constructively waived its right to request a stay at a later time.
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    As discussed in Section 4.K of the Comment Summary Report, the NRC 
has also clarified the discussion in the proposed procedures regarding 
the evidentiary hearing schedule for hearings on new and amended 
contentions filed after the deadline. First, if a new contention is 
admitted by the Commission (including a contention submitted with a 
hearing request or intervention petition after the deadline), then the 
Commission will set the hearing schedule for the new contention. 
Second, if an amended contention is admitted by the Commission, then 
the Commission may revise the existing hearing schedule as appropriate. 
Third, if the Commission delegates a ruling on an amended contention to 
an Atomic Safety and Licensing Board (ASLB) or single legal judge and 
the presiding officer admits the amended contention, then the strict 
deadline for the original contention remains the same because only the 
Commission can set the strict deadline and an amendment to a contention 
will not necessarily require an extension of the strict deadline. In 
such cases, the presiding officer should strive to meet the strict 
deadline to the best of its ability, but if unavoidable and extreme 
circumstances require an extension of the strict deadline, then the 
presiding officer may extend that deadline in

[[Page 43270]]

accordance with the procedures set forth in the case-specific order 
governing the proceeding.

D. Claims of Incompleteness

    As discussed in Section 4.E of the Comment Summary Report, the NRC 
has adopted SNC's suggestion to require a petitioner considering 
whether to file a claim of incompleteness to consult with the licensee 
regarding access to the purportedly missing information prior to the 
petitioner filing the claim. The NRC agrees with SNC that a 
consultation process, similar to the one for motions required by 10 CFR 
2.323, may obviate the need for petitioners to file, or the Commission 
to rule on, claims of incompleteness. Consultation would, therefore, 
potentially shorten the hearing schedule and conserve participants' and 
the Commission's resources.
    The NRC also agrees with SNC that consultation should be initiated 
21 days after the notice of intended operation is published. Initiating 
consultation by this date is reasonable since the petitioner would not 
be required to prepare a filing satisfying regulatory requirements but 
would only need to initiate discussions with the licensee on access to 
the allegedly missing information. In addition, a significant number of 
ITAAC notifications should be available well before the notice of 
intended operation is published, and the NRC expects petitioners to 
examine such notifications before the notice of intended operation is 
published as part of their preparations for the ITAAC hearing process. 
Further, initiating consultation 21 days after publication of the 
notice of intended operation is early enough such that, if the 
petitioner and licensee reach agreement in a reasonable period of time, 
the petitioner should be able to file any subsequent contention with 
the initial hearing request or shortly thereafter. To ensure effective 
consultation, the NRC is also requiring that the petitioner and the 
licensee engage in timely, sincere, and meaningful consultations. If 
agreement is not reached before the hearing request is due, then the 
NRC agrees with SNC that the claim of incompleteness must be filed with 
the hearing request because the consultation process should not extend 
the deadline for filing, consistent with NRC motions practice. In 
determining whether a claim of incompleteness is valid, the Commission 
will consider all of the information available to the petitioner, 
including any information provided to the petitioner by the licensee. 
The Commission will also consider whether the participants have 
discharged their consultation obligations in good faith.
    While SNC's proposal addressed ITAAC notifications that are 
available when the notice of intended operation is published, it did 
not address ITAAC notifications that become available thereafter. This 
issue was discussed in the September 22, 2014, public meeting. After 
the consideration of comments and as discussed in Section 4.E of the 
Comment Summary Report, the NRC has decided that if the ITAAC 
notification (or a redacted version thereof) becomes publicly available 
after the notice of intended operation is published, then the 
petitioner must initiate consultation with the licensee regarding any 
claims of incompleteness on such notifications within 7 days of the 
notification (or a redacted version thereof) becoming available to the 
public, except that consultation need not be commenced earlier than 21 
days after publication of the notice of intended operation. A 7-day 
period is reasonable because the volume of new ITAAC notifications to 
be examined by the petitioner after the notice of intended operation is 
published will be substantially less than the volume of ITAAC 
notifications covered by the initial hearing request, and the 7-day 
deadline is only for the initiation of consultation, not the filing of 
a formal request. In addition, a 7-day deadline is appropriate to allow 
sufficient time to complete consultation before the deadline for filing 
claims of incompleteness.
    The comment by SNC also did not address scenarios in which a 
petitioner seeks sensitive unclassified non-safeguards information 
(SUNSI) or safeguards information (SGI) from the licensee.\7\ This 
issue was also a subject of the September 22, 2014, public meeting. As 
discussed in Section 4.I of the Comment Summary Report, within one day 
of the licensee discovering that consultation on a claim of 
incompleteness involves SUNSI or SGI, the licensee must inform the 
petitioner of this fact. Within one day of the licensee discovering 
that security-related SUNSI or SGI is involved, the licensee must also 
inform the NRC staff with a brief explanation of the situation. 
Notifying the NRC staff is necessary because of the NRC's duty to 
ensure that security-related SUNSI is only provided to those 
individuals with a need for the information and that SGI is only 
provided to those individuals who have a need to know the SGI, who have 
been determined to be trustworthy and reliable after a background 
check, and who will provide sufficient security measures for any SGI in 
their possession. For this reason, if consultation on a claim of 
incompleteness involves security-related SUNSI or SGI, then the 
licensee shall not provide the security-related SUNSI or SGI unless and 
until the NRC has determined that such access is appropriate. In 
addition, if SGI is involved and the petitioner would like to continue 
to seek access, then to expedite the proceeding the petitioner must 
complete and submit to the NRC the forms and fee necessary for the 
performance of a background check within 5 days of notice from the 
licensee that SGI is involved. Petitioners are expected to have forms 
completed prior to this date to allow for expeditious submission of the 
required forms and fee.
---------------------------------------------------------------------------

    \7\ Westinghouse, however, did request the NRC include 
procedures for access to SUNSI and SGI in the context of claims of 
incompleteness, as discussed in Section 4.I of the Comment Summary 
Report.
---------------------------------------------------------------------------

    As discussed in Section 4.I of the Comment Summary Report, if a 
claim of incompleteness seeking access to SUNSI or SGI is ultimately 
filed with the NRC, then the claim of incompleteness, and the 
licensee's answer thereto, must specifically identify the extent to 
which the petitioner or the licensee believes that any of the requested 
information might be SUNSI or SGI. Also, a claim of incompleteness 
seeking access to SUNSI or SGI must show the need for the information 
(for SUNSI) and the need to know the information (for SGI). A claim of 
incompleteness involving SGI must further state that the required forms 
and fee for the background check have been submitted to the NRC. As 
discussed in Section 4.I of the Comment Summary Report, the final 
procedures state that petitioners are required to take advantage of the 
available processes for seeking access to SUNSI or SGI and that their 
failure to do so will be taken into account by the NRC. Other 
provisions regarding access to SUNSI or SGI in the context of claims of 
incompleteness have been included in the final procedures based on 
relevant provisions in the SUNSI-SGI Access Order.
    Finally, as discussed in Section 4.E of the Comment Summary Report, 
the final procedures provide that a contention based on additional 
information provided to the petitioner by the licensee through 
consultation on a claim of incompleteness will be due within 20 days of 
the petitioner's access to the additional information, unless more than 
20 days remains between access to the additional information and the 
deadline for the hearing request, in which case the contention will be 
due by the later hearing request deadline.

[[Page 43271]]

This 20-day period is consistent with the time period for filing new or 
amended contentions after the deadline.
    Apart from the consultation process for claims of incompleteness, 
the final procedures include a number of other modifications and 
clarifications to the process for claims of incompleteness. First, as 
discussed in Section 4.F of the Comment Summary Report, the procedures 
have been clarified to explicitly state that a claim of incompleteness 
does not toll a petitioner's obligation to make a timely prima facie 
showing. If the petitioner is unsure whether to file a contention or a 
claim of incompleteness on an ITAAC notification, the petitioner may 
submit both a contention and a claim of incompleteness at the same 
time, arguing in the alternative that if the contention is not 
admissible, then the claim of incompleteness is valid.
    Second, as stated in Section 4.G of the Comment Summary Report, the 
procedures have been clarified to state that claims of incompleteness 
must include a demonstration that the allegedly missing information is 
reasonably calculated to support a prima facie showing. This 
requirement is implied by 10 CFR 2.309(f)(1)(vii), but making it 
explicit should help petitioners understand the showing that NRC 
regulations require for claims of incompleteness. In addition, the 
procedures now state that the petitioner must provide an adequately 
supported showing that the 10 CFR 52.99(c) report fails to include 
information required by 10 CFR 52.99(c).
    Third, as stated in Section 4.H of the Comment Summary Report, the 
procedures have been clarified to state that a valid claim of 
incompleteness will only result in the licensee providing information 
relevant to the specific portions of the 10 CFR 52.99(c) notification 
that were the subject of the claim of incompleteness. This result is 
implied by 10 CFR 2.309(f)(1)(vii), which expressly ties the claim of 
incompleteness to a showing that the licensee's 10 CFR 52.99(c) ITAAC 
notifications do not contain information required by that regulation.
    Fourth, the template for resolving valid claims of incompleteness 
has been revised so that the additional procedures included in the 
Commission order will not be taken primarily from the evidentiary 
hearing template but will be taken primarily from the Additional 
Procedures Order in the template for the notice of intended operation. 
The Commission is making this change because fewer modifications are 
required to adapt the Additional Procedures Order to resolve valid 
claims of incompleteness.

E. Legal Contentions and Briefing of Legal Issues

    As discussed in Section 4.M of the Comment Summary Report, the NRC 
has clarified the procedures to define a legal contention as any 
contention that does not involve a dispute of fact. Also, in order to 
expedite the proceeding and ensure sound decision making by the 
presiding officer, the final procedures provide that participants must 
fully brief all relevant legal issues in their filings. This includes, 
but is not limited to, (1) hearing requests filed by the original 
deadline; (2) hearing requests, intervention petitions, and motions for 
leave to file new or amended contentions or claims of incompleteness 
filed after the original deadline; and (3) answers to these filings. By 
requiring participants to fully brief legal issues in their filings, 
the presiding officer may be able to resolve all legal questions 
quickly.
    In addition, the NRC has modified the template for the legal 
contention track to more specifically describe how the evidentiary 
hearing procedures apply to a hearing on a legal contention. In 
summary, the evidentiary hearing procedures apply with the exception of 
those that involve testimony (or associated filings) and those that 
involve discovery, the purpose of which is to support the preparation 
of testimony. Also, the final legal contention track template 
eliminates the statement in the proposed template that procedures 
dealing with interactions between the Commission and administrative 
judges would be omitted if the Commission designates itself as the 
presiding officer for resolving the legal contention. The NRC made this 
change because, even if the Commission is the presiding officer for the 
legal contention, a licensing board or single legal judge might rule on 
amended contentions or disputes over access to SUNSI or SGI.

F. Motions for Extension of Time

    In the proposed procedures (79 FR at 21968), the NRC included the 
following proposal for motions for extension of time:

    Motions for extension of time will be allowed, but good cause 
must be shown for the requested extension of time based on an event 
occurring before the deadline. To meet the statutory mandate for the 
timely completion of the hearing, deadlines must be adhered to 
strictly and only exceptional circumstances should give rise to 
delay. Therefore, in determining whether there is good cause for an 
extension, the factors in 10 CFR 2.334 will be considered, but 
``good cause'' will be interpreted strictly, and a showing of 
``unavoidable and extreme circumstances'' will be required for more 
than very minor extensions . . . .
    Motions for extension of time shall be filed as soon as 
possible, and, absent exceptional circumstances, motions for 
extension of time will not be entertained if they are filed more 
than two business days after the moving party discovers the event 
that gives rise to the motion. The Staff selected an event-based 
trigger for the filing of an extension request because meritorious 
motions will likely be based on events outside the party's control 
given the strict interpretation of good cause.

(footnote omitted). However, the NRC specifically requested comment on 
whether ``very minor extensions'' should be defined in a more objective 
manner or whether a showing of unavoidable and extreme circumstances 
should be required for all extension requests, no matter how minor. The 
NRC also requested comment on whether a deadline-based trigger (e.g., 
``motions for extension of time shall be filed as soon as possible, but 
no later than 3 days before the deadline'') should be used in lieu of, 
or in combination with, an event-based trigger.

    As discussed in Section 3.B of the Comment Summary Report, the NRC 
has decided to eliminate the ``very minor extensions'' language because 
the NRC agrees with commenters that (1) the ITAAC hearing schedule does 
not allow for any delay unless such delay is absolutely necessary, (2) 
employing one standard instead of two makes application simpler and 
avoids litigation over which standard should apply, and (3) it is 
possible for participants to meet the unavoidable and extreme 
circumstances standard for very minor extension requests (e.g., a one-
day extension request based on an unforeseen, sudden event occurring on 
the filing due date that prevents the participant from meeting the 
deadline). Therefore, the NRC has decided to apply the unavoidable and 
extreme circumstances standard to all extension requests, no matter how 
minor.
    The NRC has also decided to employ a combination of a deadline-
based and an event-based trigger for motions for extension of time. The 
NRC agrees with SNC's comment that a meritorious motion for extension 
of time will generally be triggered by a sudden, unforeseen event, 
probably at the last minute. However, the NRC also agrees with NEI and 
SCE&G that the event giving rise to an extension request might occur 
over time, making it difficult to identify the specific date that would 
trigger the obligation to file an extension

[[Page 43272]]

request. Given these considerations, the NRC has decided to employ a 
deadline-based trigger for extension requests but to allow for the 
later filing of an extension request if unavoidable and extreme 
circumstances prevent the filing of the extension request by the 
deadline-based trigger. Specifically, the final procedures provide that 
motions for extension of time shall be filed as soon as possible, but 
no later than 3 days before the deadline, with one limited exception. 
If the petitioner is unable to file an extension request by 3 days 
before the deadline, then the petitioner must (1) file its request as 
soon as possible thereafter, (2) demonstrate that unavoidable and 
extreme circumstances prevented the petitioner from filing its 
extension request by 3 days before the deadline, and (3) demonstrate 
that the petitioner filed its extension request as soon as possible 
thereafter.

G. Presiding Officer for the Hearing

    As discussed in Section 6.A of the Comment Summary Report, the NRC 
has decided that for evidentiary hearings (i.e., hearings involving 
testimony), an ASLB or a single legal judge (assisted as appropriate by 
technical advisors) will preside over the hearing. An ASLB or a single 
legal judge can efficiently conduct evidentiary hearings, and this 
choice promotes an appropriate division of responsibilities between the 
Commission and administrative judges because the Commission has tasked 
itself with (1) issuing decisions on initial hearing requests and on 
hearing requests, intervention petitions, new contentions, and claims 
of incompleteness filed after the deadline, (2) designating hearing 
procedures, and (3) making the adequate protection determination for 
interim operation. This choice also provides the flexibility to employ 
multiple presiding officers in cases where a large number of 
contentions are admitted.
    The case-specific choice on whether to employ an ASLB or a single 
legal judge for an evidentiary hearing will ordinarily be made by the 
Chief Administrative Judge of the Atomic Safety and Licensing Board 
Panel after the Commission grants the hearing request. To ensure that 
the selected presiding officer can immediately engage the proceeding in 
a meaningful manner, the Chief Administrative Judge will be expected to 
identify, within a reasonable period of time prior to the Commission's 
decision on the hearing request, administrative judges who might be 
selected to serve as the presiding officer. The Commission expects the 
selected judges to familiarize themselves with the ITAAC hearing 
procedures and the parties' pleadings before a decision on the hearing 
request so that they can perform meaningful work immediately after a 
decision on the hearing request.
    For hearings on legal contentions, the choice of presiding officer 
will generally depend on case-specific factors. The procedures retain 
the Commission's discretion to serve as the presiding officer or to 
delegate that function. However, the Commission has concluded, as a 
general matter, that a single legal judge should be the presiding 
officer for hearings on legal contentions when the Commission chooses 
not to be the presiding officer. When only legal issues are involved, 
the considerations in favor of employing a panel are less weighty given 
that most ASLBs in other proceedings include only one legal judge, with 
the other two judges being technical experts on factual matters. Also, 
a single judge may be able to reach and issue a decision more quickly 
than a panel of judges. Therefore, the final procedures provide that if 
the Commission chooses not to be the presiding officer for a hearing on 
a legal contention, the presiding officer will be a single legal judge, 
assisted as appropriate by technical advisors.

H. Evidentiary Hearing Schedule

    As discussed in Section 5.C of the Comment Summary Report, the NRC 
has made some modifications to the general evidentiary hearing track 
schedules. First, the NRC has changed the milestone for initial 
testimony from 35 days after the granting of the hearing request to 30 
days after the granting of the hearing request. The NRC has also added 
a provision explicitly providing that the Commission may in a 
particular proceeding add up to 5 days to, or subtract up to 5 days 
from, this 30-day milestone. These changes to the initial testimony 
milestones are intended to provide more flexibility in the hearing 
schedule based on the number and complexity of contested issues. While 
30 days is the default period, a 25-day period might be appropriate 
when there are only one or two simple issues in dispute, while a 35-day 
period might be needed if the hearing involves numerous admitted 
contentions with complex issues. Second, the NRC has reduced the time 
period for rebuttal in the Track 1 procedures to 14 days from 15 days. 
A 14-day period day should avoid delays resulting from a deadline 
falling on a weekend while giving parties sufficient time to prepare 
their rebuttal filings.
    Third, the final procedures explicitly acknowledge the possibility 
that the oral hearing might last longer than one day and explicitly 
allow for changes to the overall schedule in light of this possibility 
to ensure that the initial decision is issued by the strict deadline. 
The NRC expects the presiding officer to consider and discuss such 
adjustments during the prehearing conference. Fourth, and finally, the 
final procedures add, as an example of the presiding officer's 
authority to make minor modifications to Commission-established 
milestones, the ability of the presiding officer to make a minor 
adjustment to a milestone to avoid delay that would occur if the 
milestone falls on a weekend or holiday (e.g., reducing the due date 
for initial testimony from 30 days to 29 days because the 30th day 
falls on a Saturday). The final procedures also state that the 
Commission expects the presiding officer to make such adjustments, as 
necessary, to avoid delay.

I. Criteria for Deciding Between the Track 1 and Track 2 Procedures

    In the proposed procedures (79 FR at 21970), the NRC requested 
comment on factors for the Commission to consider when choosing between 
Track 1 procedures (which include both written initial and rebuttal 
testimony) and Track 2 procedures (which include written initial 
testimony but not written rebuttal testimony) in an individual 
proceeding. The proposed procedures explained that while Track 2 has a 
schedule advantage in that it is shorter than Track 1, the Track 1 
procedures enjoy the advantages that come from written rebuttal, 
including greater assurance that the contested issues will be fully 
fleshed out in writing before the hearing.
    As discussed in Section 5.D of the Comment Summary Report, the NRC 
has made the Track 1 procedures the default evidentiary hearing track. 
Written rebuttal should ensure that the parties have a complete 
opportunity to respond to new, unexpected issues raised in the other 
parties' initial testimony. Also, written rebuttal should help to 
clarify the evidentiary record and the contested issues prior to the 
oral hearing, which ought to make the oral hearing shorter and more 
efficient. Further, written rebuttal should help the presiding officer 
reach its decision more expeditiously by increasing the likelihood that 
the topics raised in initial testimony will have been fully addressed 
before the hearing. Given these advantages, written rebuttal will be 
included in most cases. Setting Track 1 as the default hearing track 
will simplify the process for designating hearing procedures in each 
proceeding.

[[Page 43273]]

    The Track 1 schedule should generally accommodate a timely hearing 
decision for contentions submitted with the initial hearing request. In 
cases where the Track 1 schedule might not accommodate issuance of the 
initial decision by scheduled fuel load (e.g., where new contentions 
after the deadline are admitted), the NRC believes that the benefits of 
written rebuttal will nevertheless generally outweigh the minor 
potential time savings from its elimination. Also, even though Track 2 
is nominally shorter than Track 1, the time saved from eliminating 
written rebuttal might ultimately be lost during the hearing and post-
hearing phases if the presiding officer has an incomplete understanding 
of the parties' positions prior to the oral hearing.
    In any event, the Commission retains the authority to eliminate 
written rebuttal in individual proceedings. For example, the Commission 
might eliminate written rebuttal if the contested issues are narrow and 
simple and the parties' positions in the hearing request and answers 
are sufficiently established to allow a full response in the parties' 
initial testimony and statements of position. To enhance the 
Commission's ability to make such a change in a timely manner, the 
evidentiary hearing template indicates the modifications that would 
need to be made if the Commission decides to exclude written rebuttal.

J. Additional Evidentiary Hearing Tracks

    As discussed in Section 5.E of the Comment Summary Report, several 
commenters recommended the use of hearing tracks in addition to those 
described in the proposed procedures. Specifically, NEI and SCE&G 
recommended the use of a purely oral subpart N-type hearing track in 
some cases to complete the hearing more quickly, while Westinghouse 
recommended the possible use of a legislative hearing track. As 
explained in the Comment Summary Report, the NRC declines to adopt 
these suggestions but is supplementing its discussion of the rationale 
for the selected hearing tracks in Section V.D of this notice.
    The procedures have also been clarified with respect to the 
prohibition in 10 CFR 2.309(g) that participants may not address the 
selection of hearing procedures in their initial filings. The final 
procedures state that this prohibition does not apply to hearing 
requests from the licensee because such hearing requests are not 
subject to 10 CFR 2.309 and because the generic procedures do not 
address the procedures for hearings requested by the licensee.

K. APA Section 554 Provision on Eliminating the Need for a Hearing

    As discussed in Section 5.F of the Comment Summary Report, several 
commenters recommended that the NRC set up a process for invoking the 
Administrative Procedure Act (APA) exception in 5 U.S.C. 554(a)(3) to 
avoid holding a hearing where the decision ``rest[s] solely on 
inspections, tests, or elections.'' The commenters suggested that the 
Commission determine the exception's applicability in its decision on 
the hearing request. While the NRC has previously stated in the 
abstract that it may be legally possible to apply the APA exception to 
some ITAAC in an ITAAC hearing (depending on the wording of the ITAAC 
and other relevant circumstances), the NRC does not believe that the 
commenters' suggestion is practical.
    If the petitioner does not satisfy the hearing request 
requirements, then invoking the APA exception would be unnecessary. 
However, if the petitioner meets the hearing request requirements, 
including the prima facie showing, then the petitioner will have raised 
questions of sufficiency, of credibility, or conflict (i.e., that the 
licensee's manner or method of complying with the ITAAC is flawed) that 
would warrant the grant of a hearing.
    Although not suggested by the commenters, the NRC also considered 
the possibility of applying the APA exception prior to the hearing by 
individually considering all of the ITAAC and all of the possible 
challenges to ITAAC completion and then selecting the ITAAC that could 
fall under the APA exception. However, the NRC does not believe that it 
would be fruitful to engage in such an exercise at this time given the 
massive resources required, the way most ITAAC are currently written, 
and the NRC's lack of experience with ITAAC hearings.
    For the reasons described in this section and in Section 5.F of the 
Comment Summary Report, the NRC has modified the procedures to state 
that the NRC has not identified at this time a practical approach for 
invoking the APA exception in an ITAAC hearing.

L. Contraction of Fuel Load Schedule

    As discussed in Section 5.G of the Comment Summary Report, the NRC 
has modified the procedures to clarify a statement in the proposed 
procedures regarding the licensee's ability to accelerate its fuel load 
schedule once the notice of intended operation is published. The NRC 
did not intend to prevent a licensee from operating if all of the 
requirements for operation are met. However, for the purposes of 
meeting the directive in Section 189a.(1)(B)(v) of the AEA for the NRC 
to timely complete the hearing, the ``anticipated date for initial 
loading of fuel into the reactor'' referenced in Section 189a.(1)(B)(v) 
of the AEA is established prior to publication of the notice of 
intended operation and cannot thereafter be moved up by the licensee. 
This is because the hearing process will be triggered, and the schedule 
will in part be determined, by publication of the notice of intended 
operation, the timing of which is based on the fuel load schedule that 
the licensee provides to the NRC before the notice of intended 
operation. If the ``anticipated date for initial loading of fuel into 
the reactor'' could be moved up after the notice of intended operation, 
then the NRC could be put in the untenable position of having a 
constantly moving target for completing the hearing. The NRC does not 
believe that Congress intended this, or that trying to meet such a 
constantly moving target would be consistent with a fair and orderly 
hearing process. Nonetheless, the licensee can, consistent with 10 CFR 
52.103(a), move up its scheduled fuel load date after the notice of 
intended operation is published. Such a contraction in the licensee's 
fuel load schedule would have no effect on the hearing schedule, but as 
a practical matter, the NRC would consider such a contraction in the 
licensee's schedule as part of its process for making the 10 CFR 
52.103(g) finding and the adequate protection determination for interim 
operation.

M. Pre-Clearance Process for Access to SGI

    As discussed in Section 6.B of the Comment Summary Report, the NRC 
has decided to publish the plant-specific Federal Register notice on 
the pre-clearance SGI background check process 420 days before 
scheduled fuel load rather than 390 days before scheduled fuel load. 
For these purposes, the NRC will base the projected date of fuel load 
on the licensee's estimated schedule. This change accounts not only for 
the fact that the notice of intended operation might be published up to 
75 days earlier, but also for the fact that SGI background checks now 
take less time than they previously did. The NRC has also decided that 
this ``pre-clearance'' notice will state that the required background 
check forms and fee should be submitted within 20 days of the pre-
clearance notice to allow enough time for the completion of the

[[Page 43274]]

background check prior to the publication of the notice of intended 
operation. Finally, the NRC has made some clarifications to the 
discussion in the proposed procedures regarding delays due to the 
processing of SGI background checks.

N. Development of Protective Order Templates for Access to SUNSI and 
SGI

    As discussed in Section 6.B of the Comment Summary Report, the NRC 
will develop generic protective order templates for SUNSI and SGI to 
help expedite proceedings involving a petitioner's access to SUNSI or 
SGI. The NRC intends to develop these templates in a public process 
allowing stakeholder feedback, separate from the issuance of these 
final ITAAC hearing procedures. However, the final procedures reflect 
the use of the generic protective order templates that will be 
developed by the NRC.

O. Presiding Officer for Review of SUNSI-SGI Access Determinations and 
Related Matters

    In the proposed procedures, the NRC requested comment on whether 
the Commission or an ASLB (or single legal judge) should be the 
presiding officer for review of SUNSI-SGI access determinations and for 
protective orders and other related matters under the SUNSI-SGI Access 
Order. See Draft Template A, at 44 nn. 23-24, 45-46 (ADAMS Accession 
No. ML14097A460). For an admitted party seeking access to SUNSI or SGI 
relevant to the admitted contentions, the proposed procedures provided 
that the 10 CFR 2.336 disclosures process would be used in lieu of the 
SUNSI-SGI Access Order, and that any disputes among the parties over 
access to SUNSI would be resolved by the presiding officer, while any 
disputes over access to SGI would be resolved in accordance with 10 CFR 
2.336(f). See Draft Template B, at 17 (ADAMS Accession No. 
ML14097A468).
    As discussed in Section 6.F of the Comment Summary Report, the NRC 
has determined that challenges to NRC staff access determinations under 
the SUNSI-SGI Access Order are to be filed with the Chief 
Administrative Judge, who will assign a single legal judge (assisted as 
appropriate by technical advisors) to rule on the challenge. The 
Commission believes that administrative judges are particularly suited 
to expeditiously resolve questions of this kind, and a single legal 
judge may be able to issue a decision on a more expedited basis. If the 
challenge relates to an adverse determination by the NRC's Office of 
Administration on trustworthiness and reliability for access to SGI, 
then consistent with 10 CFR 2.336(f)(1)(iv), neither the single legal 
judge chosen to rule on such challenges nor any technical advisors 
supporting a ruling on the challenge can serve as the presiding officer 
for the proceeding.\8\
---------------------------------------------------------------------------

    \8\ This restriction is intended to prevent the possible 
appearance that a presiding officer's ruling on the merits of a 
contention, for example, might have been improperly influenced by 
access to personal information about a person requesting access to 
SGI. See Protection of Safeguards Information, (73 FR 63546, 63550; 
October 24, 2008) (final rule).
---------------------------------------------------------------------------

    Consistent with the proposed procedures, a motion to compel access 
to SUNSI made as part of the mandatory disclosures process shall be 
heard by the presiding officer of the proceeding, and a motion to 
compel access to SGI made as part of the mandatory disclosures shall be 
resolved in accordance with 10 CFR 2.336(f). Consistent with 10 CFR 
2.336(f), the presiding officer for the hearing would hear challenges 
to NRC staff determinations on access to SGI except for challenges to 
adverse Office of Administration determinations on trustworthiness and 
reliability. For adverse determinations on trustworthiness and 
reliability, a separate single legal judge (assisted as appropriate by 
technical advisors) would rule on the challenge.
    For the sake of efficiency, in cases where there is a dispute over 
access to SUNSI or SGI that was resolved by a presiding officer, the 
presiding officer for the issuance of protective orders and other 
related matters will be the same as the presiding officer that heard 
the dispute over access. In cases where there is no access dispute but 
a presiding officer is needed for protective orders or other related 
matters, (1) the presiding officer for the admitted contention will be 
the presiding officer for such matters when the SUNSI or SGI is being 
provided as part of mandatory disclosures, and (2) the Chief 
Administrative Judge will appoint a presiding officer for such matters 
when the SUNSI or SGI is being provided under the SUNSI-SGI Access 
Order.

P. Mandatory Disclosures

    As discussed in Section 6.G of the Comment Summary Report, the NRC 
has made the following modifications to the mandatory disclosure 
requirements to make them more flexible and efficient:
     Parties may agree to exclude certain classes of documents 
(such as drafts) from the mandatory disclosures. The NRC has no 
objection to such exclusions if agreed to by the parties, and such 
exclusions should be discussed at the prehearing conference.
     As a default matter, a party is not required to include a 
document in a privilege log if (1) the document satisfies the 
withholding criteria of 10 CFR 2.390(a), and (2) the document is not 
being withheld on the basis that it is SGI, security-related SUNSI, or 
proprietary information. The NRC is making this change because SGI, 
security-related SUNSI, and proprietary information could have some 
bearing on contested issues and access might be appropriate in some 
circumstances pursuant to a protective order. However, other types of 
privileged information are much less likely to have a bearing on 
contested issues, particularly given the narrow technical nature of 
ITAAC. Nonetheless, the presiding officer may change the scope of the 
privilege log requirement for a case-specific reason, and the parties 
may jointly agree to change the scope of the privilege log requirement.
     Privilege logs will be viewed as sufficient if they 
specifically identify each document being withheld (including the date, 
title, and a brief description of the document) and the basis for 
withholding (e.g., ``contains SGI'').

Q. Notifications of Relevant New Developments in the Proceeding

    As discussed in Section 6.H of the Comment Summary Report, the 
procedures have been revised to state that if an ITAAC closure 
notification or ITAAC post-closure notification is submitted on a 
contested ITAAC, then notification to the ASLB and the participants of 
this fact will be due within one day, rather than on the same day. The 
NRC agrees with commenters that same-day notification may be 
impractical in some instances.

R. Proposed Findings of Fact and Conclusions of Law

    In the proposed procedures (79 FR at 21972), the NRC requested 
comment on the following two options regarding proposed findings of 
fact and conclusions of law:
    (1) Proposed findings of fact and conclusions of law would be 
allowed unless the presiding officer, on its own motion or upon a joint 
agreement of all the parties, dispenses with proposed findings of fact 
and conclusions of law for some or all of the hearing issues.
    (2) Proposed findings of fact and conclusions of law would not be 
permitted unless the presiding officer determines that they are 
necessary. Under this option, the presiding officer may limit the scope 
of proposed

[[Page 43275]]

findings of fact and conclusions of law to certain specified issues.
    As discussed in Section 6.J of the Comment Summary Report, the NRC 
is adopting the option whereby proposed findings of fact and 
conclusions of law will be allowed unless the presiding officer 
dispenses with them for some or all of the hearing issues. The NRC is 
allowing proposed findings of fact and conclusions of law as a default 
matter because they may aid the presiding officer by summarizing the 
parties' positions on the issues at hearing and citing to the hearing 
record. Allowing proposed findings of fact and conclusions of law also 
should not significantly affect the hearing schedule because the 
initial decision date is tied to the oral hearing date. Further, the 
parties should have available resources to prepare the filing since all 
other hearing activities will have concluded. Finally, the presiding 
officer may adopt a party's proposed findings of fact and conclusions 
of law if the presiding officer deems it appropriate to do so, which 
could save time in some cases.

S. Motions and Petitions for Reconsideration and Motions for 
Clarification

    In the proposed procedures (79 FR at 21968-69, 21970), the NRC 
requested comment on the following three options regarding requests for 
reconsideration:
    (1) Except for more abbreviated filing deadlines, motions and 
petitions for reconsideration would be allowed in accordance with 10 
CFR 2.323(e) and 10 CFR 2.345, respectively.
    (2) Motions and petitions for reconsideration would only be allowed 
for the initial decision and Commission decisions on appeal of the 
initial decision.
    (3) Motions and petitions for reconsideration would not be 
permitted.
    In addition, for Options 2 and 3, the proposed procedures included 
two limitations on motions for clarification to prevent them from 
becoming de facto motions for reconsideration. Specifically, a motion 
for clarification could only be based on an ambiguity in a presiding 
officer order and could not advocate for a particular interpretation of 
the presiding officer order.
    As discussed in Section 6.L of the Comment Summary Report, the NRC 
has adopted Option 2, which allows reconsideration only for initial 
decisions and Commission decisions on appeal of initial decisions. The 
NRC has also included the limitations on motions for clarification that 
are described previously with the exception of the prohibition on 
advocacy, which the NRC considers unnecessary. The NRC adopted Option 2 
to avoid diversion of presiding officer and party resources prior to 
the initial decision given the extremely abbreviated ITAAC hearing 
schedule and given that appeal rights will quickly accrue. In addition, 
a request for reconsideration of either the initial decision or of a 
Commission decision on appeal of the initial decision will not prevent 
these decisions from taking effect. Furthermore, initial decisions and 
Commission decisions on appeal of initial decisions are the most 
important decisions in the proceeding, so allowing reconsideration of 
these decisions is prudent.
    Notwithstanding this, the NRC acknowledges that given the first-of-
a-kind nature of ITAAC hearings, there may be a need to correct 
misunderstandings or errors in a presiding officer's decision. The 
potential for such errors and misunderstandings may be compounded by 
the very tight timeline on which decisions must be issued. Thus, to the 
extent that a presiding officer decision is based on a simple 
misunderstanding or a clear and material error (e.g., a conflict 
between the scheduling order and the Commission's order imposing 
procedures for the hearing), the parties could attempt to more 
informally raise the issue with the presiding officer by requesting a 
conference call on the matter.\9\ For this reason, the final procedures 
allow such requests, which should be made by email to the presiding 
officer's law clerk with the other parties' representatives copied on 
it. If the presiding officer decides that no conference call is 
necessary, then the parties' and the presiding officer's resources will 
not have been expended. If a conference call is held, the resource 
expenditure should be minimal and any error or misunderstanding could 
be more quickly rectified than through a formal request for 
reconsideration.
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    \9\ This possibility is not available in cases where the 
Commission, itself, is serving as the presiding officer because such 
an informal process would be impractical since Commission action is 
subject to formal processes (some of which are required by law). In 
addition, the potential need for such an informal process is less 
likely to arise in the portions of the ITAAC hearing process over 
which the Commission will preside.
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T. Interlocutory Review

    In the proposed procedures (79 FR at 21970), the NRC requested 
comment on the following two options regarding interlocutory review:
    (1) Interlocutory review would be available only for presiding 
officer determinations on access to SUNSI or SGI.
    (2) Interlocutory review would be available for presiding officer 
determinations on access to SUNSI or SGI. For other presiding officer 
decisions, the interlocutory review provisions of 10 CFR 2.341(f) would 
be retained without modification. However, interlocutory review would 
be disfavored, except for decisions on access to SUNSI or SGI, because 
of the expedited nature of an ITAAC hearing.
    As discussed in Section 6.M of the Comment Summary Report, the NRC 
has limited interlocutory review to decisions on access to SUNSI or SGI 
because interlocutory review of other decisions would be unnecessary 
and unproductive given the expedited nature of the proceeding. Because 
of the abbreviated ITAAC hearing schedule, appeal rights will quickly 
accrue, and before the initial decision, the parties' resources should 
be dedicated to completing the hearing. The NRC is allowing 
interlocutory review for decisions granting access to SUNSI or SGI 
because a post-hearing appeal opportunity will not cure the harm from a 
pre-hearing grant of access to sensitive information. The NRC is also 
providing a right to interlocutory review for decisions denying access 
to SUNSI or SGI because the NRC believes that those seeking access to 
SUNSI or SGI should have a reciprocal appeal opportunity and because it 
is important to quickly resolve disputes over access to such 
information given the potential effect that an erroneous denial of 
access might have on the schedule of the proceeding. However, the 
Commission does not expect appeals seeking to overturn a denial of 
access to SUNSI or SGI to delay any aspect of the proceeding unless the 
requestor can show irreparable harm.
    The NRC has also decided that, because of the limited nature of the 
dispute, a 7-day period is appropriate for filing and answering 
interlocutory appeals of decisions on access to SUNSI or SGI. The NRC 
has also made corresponding changes to the deadlines in 10 CFR 
2.336(f)(1)(iii)(B) and (f)(1)(iv) for challenges to adverse NRC's 
Office of Administration determinations on trustworthiness and 
reliability for access to SGI.

U. Reopening the Record

    The proposed procedures (Draft Template B, page 35) provided a 
procedural mechanism for reopening the record, and provided for comment 
the following two options on how the reopening standards were to be 
applied:
    (1) The NRC's existing rule in 10 CFR 2.326 would apply to any 
motion to reopen the record.

[[Page 43276]]

    (2) Motions to reopen the record would be entertained only with 
respect to the submission of new information related to a previously 
admitted contention, and 10 CFR 2.326 would apply to any such motion. A 
motion to reopen would not be required for a hearing request, 
intervention petition, or motion for leave to file a new or amended 
contention filed after the original deadline.
    As stated in the Federal Register notice for the proposed 
procedures (79 FR at 21967), the intended difference between the two 
options was whether hearing requests, intervention petitions, and new 
or amended contentions after the original deadline should be exempted 
from the requirements in 10 CFR 2.326. The proposed procedures stated 
that a possible rationale for not applying the reopening standards to 
these filings after the deadline is that the purposes served by the 
reopening provisions--to ensure an orderly and timely disposition of 
the hearing--would be addressed by the requirements already applying to 
hearing requests, intervention petitions, and new or amended 
contentions filed after the deadline. Specifically, the proposed 
procedures stated that one could argue that any timeliness concerns are 
addressed by the good cause requirement in 10 CFR 2.309(c) and that 
concerns regarding newly raised issues being significant and 
substantiated are addressed by the prima facie showing requirement in 
10 CFR 2.309(f)(1)(vii).
    As discussed in Section 6.O of the Comment Summary Report, the NRC 
has decided that the 10 CFR 2.326 reopening requirements will apply to 
all efforts to reopen the record. The reopening standards are familiar 
in NRC adjudications and have served to ensure the orderly and timely 
disposition of proceedings in the past. Applying the reopening 
standards to hearing requests, intervention petitions, and new or 
amended contentions filed after the deadline may enable the agency to 
avoid fruitless hearings close to the date of expected fuel load in 
some situations. These situations would occur when the contention 
provides a prima facie case but does not raise a substantial issue or 
demonstrate the likelihood of a materially different result. Finally, 
the Commission does not expect this standard to impose a substantial 
burden on the litigants given the similarity between the reopening 
standards and the ITAAC contention admissibility standards.

V. Interim Operation

    In response to comments, the NRC has decided to expand on and 
clarify the discussion of interim operation in the proposed procedures. 
Specifically, as explained in Section 7.B of the Comment Summary 
Report, the NRC is supplementing its discussion of the basis for its 
conclusion that the Commission's determination on adequate protection 
during interim operation is not intended to be a merits determination 
on the petitioner's prima facie showing. Also, as discussed in Section 
7.D of the Comment Summary Report, the NRC is expanding on and 
clarifying the procedures' discussion of how interim operation applies 
in various contexts. The additional discussion on these two points 
appears later in this notice. Finally, as discussed in Section 7.F of 
the Comment Summary Report, the NRC has modified the procedural order 
templates to state, consistent with the Federal Register notice for the 
proposed and final procedures, that 10 CFR 2.340(j) does not apply in 
cases where interim operation has been allowed.

W. Submission, Filing, and Service of Documents

    As discussed in Section 3.A of the Comment Summary Report, the NRC 
has decided to eliminate hand delivery as a means of submitting, 
filing, or serving documents. Hand delivery to the NRC is impractical 
because it would require a contact being available to receive the 
document at the time it is delivered, which would impose undue burdens 
on the recipients, especially if the document were delivered later in 
the evening. For the same reason, hand delivery could be impractical 
for other organizations.
    On a different matter, the final procedures now specify that SGI 
background check forms and fees that are submitted to the NRC pursuant 
to the SUNSI-SGI Access Order must be submitted by overnight mail. No 
method of delivery was specified in the proposed procedures, but the 
NRC has decided to require the use of overnight mail to avoid delay and 
to be consistent with the filing and transmission methods used for 
paper documents in other ITAAC hearing-related contexts.

X. Initial Decision Becoming Final Action of the Commission

    The proposed procedures included a change to 10 CFR 2.1210 
regarding the time at which the initial decision becomes final action 
of the Commission. This change had the purpose of making 10 CFR 2.1210 
conform to 10 CFR 2.341. However, after the proposed procedures were 
published, the NRC issued a rule entitled ``Miscellaneous Corrections'' 
(79 FR 66598; November 10, 2014) modifying 10 CFR 2.1210 to be 
consistent with 10 CFR 2.341. Therefore, the change to 10 CFR 2.1210 
that was in the proposed ITAAC hearing procedures is no longer 
necessary and has been eliminated.

IV. Previously Established Law, Regulation, and Policy Governing ITAAC 
Hearings

    In developing ITAAC hearing procedures, the NRC has implemented 
previously established law, regulation, and policy governing ITAAC 
hearings. In particular, the procedures were developed with an eye 
toward the overarching statutory requirement for the expeditious 
completion of an ITAAC hearing found in Section 189a.(1)(B)(v) of the 
AEA. This section provides that the Commission shall, to the maximum 
possible extent, render a decision on issues raised by the hearing 
request within 180 days of the publication of the notice of intended 
operation or the anticipated date for initial loading of fuel into the 
reactor, whichever is later. Other provisions of previously established 
law, regulation, and policy, the discussion of which directly follows, 
may be grouped into three categories: (1) Provisions relating to 
hearing requests, (2) provisions relating to interim operation, and (3) 
provisions relating to the initial decision of the presiding officer on 
contested issues after a hearing.

A. Hearing Request

    Section 189a.(1)(B)(i) of the AEA and 10 CFR 52.103(a) provide that 
not less than 180 days before the date scheduled for initial loading of 
fuel into the reactor, the NRC will publish in the Federal Register a 
notice of intended operation, which will provide that any person whose 
interest may be affected by operation of the plant may within 60 days 
request the Commission to hold a hearing on whether the facility as 
constructed complies, or on completion will comply, with the acceptance 
criteria of the license. The contents of the notice of intended 
operation are governed by 10 CFR 2.105. With respect to the timing of 
this notice, the Commission's previously stated goal was to publish the 
notice of intended operation 210 days before scheduled fuel load (72 FR 
at 49367). This is still the goal if uncompleted ITAAC notifications 
are not submitted earlier than required. However, the NRC has decided 
that it will publish the notice of intended operation up to 75 days 
earlier (i.e., 285 days before scheduled fuel load) if the uncompleted 
ITAAC notifications are submitted earlier than

[[Page 43277]]

required and certain other requirements are met.
    Hearing requests are governed by 10 CFR 2.309. In accordance with 
10 CFR 2.309(a), a hearing request in a proceeding under 10 CFR 52.103 
must include a demonstration of standing and contention admissibility, 
and 10 CFR 2.309(a) does not provide a discretionary intervention 
exception for ITAAC hearings as it provides for other proceedings. 
Thus, discretionary intervention pursuant to 10 CFR 2.309(e) does not 
apply to ITAAC hearings as it does to other proceedings. As reflected 
in 10 CFR 2.309(f)(1)(i), the issue of law or fact to be raised in an 
ITAAC hearing request must be directed at demonstrating that one or 
more of the acceptance criteria in the combined license have not been, 
or will not be met, and that the specific operational consequences of 
nonconformance would be contrary to providing reasonable assurance of 
adequate protection of the public health and safety.\10\
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    \10\ Because the ITAAC were previously approved by the NRC and 
were subject to challenge as part of the COL proceeding, a challenge 
to the ITAAC themselves will not give rise to an admissible 
contention, but the ITAAC could be challenged in a petition to 
modify the terms and conditions of the COL that is filed under 10 
CFR 52.103(f). See 2007 Part 52 Rule, 72 FR at 49367 n.3. Because 10 
CFR 52.103(f) petitions are outside the scope of the ITAAC hearing 
process, the 10 CFR 52.103(f) process is outside the scope of this 
notice.
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    In addition to the normal requirements for hearing requests, ITAAC 
hearing requests must, as required by Section 189a.(1)(B)(ii) of the 
AEA, show, prima facie, that one or more of the acceptance criteria in 
the combined license have not been, or will not be, met and must show, 
prima facie, the specific operational consequences of nonconformance 
that would be contrary to providing reasonable assurance of adequate 
protection of the public health and safety. This required ``prima 
facie'' showing is implemented in 10 CFR 2.309(f)(1)(vii). Section 
2.309(f)(1)(vii) also provides a process for petitioners to claim that 
a licensee's 10 CFR 52.99(c) report is incomplete and that this 
incompleteness prevents the petitioner from making the necessary prima 
facie showing. To employ this process, which this notice terms a 
``claim of incompleteness,'' the petitioner must identify the specific 
portion of the licensee's 10 CFR 52.99(c) report that is incomplete and 
explain why this deficiency prevents the petitioner from making the 
necessary prima facie showing.
    Also, as provided by 10 CFR 51.108, the NRC is not making any 
environmental finding in connection with its finding under 10 CFR 
52.103(g) that the acceptance criteria are met, and the Commission will 
not admit any contentions on environmental issues in an ITAAC hearing. 
Instead, the 10 CFR 52.103(g) finding is a categorical exclusion as 
provided in 10 CFR 51.22(c)(23). As the Commission explained (72 FR at 
49428) when promulgating 10 CFR 51.108 and 10 CFR 51.22(c)(23): (1) The 
major Federal action with respect to facility operation is issuing the 
COL because the COL authorizes operation subject to successful 
completion of the ITAAC; (2) the environmental effects of operation are 
evaluated in the COL environmental impact statement; and (3) the 10 CFR 
52.103(g) finding is constrained by the terms of the ITAAC (i.e., it 
involves only a finding on whether the predetermined acceptance 
criteria are met). Therefore, the environmental effects of operation 
were considered, and an opportunity for a hearing on these effects was 
provided, during the proceeding on issuance of the COL.
    Design certification rules contain additional provisions regarding 
ITAAC hearing requests. Any proceeding for a reactor referencing a 
certified design would be subject to the design certification rule for 
that particular design. For example, any ITAAC hearing for a plant 
referencing the AP1000 Design Certification Rule would be subject to 
the requirements of 10 CFR part 52, appendix D. Paragraph VI of 10 CFR 
part 52, appendix D, establishes the issue finality provisions for the 
AP1000 design certification and specifically discusses the application 
of these provisions to ITAAC hearings. Paragraph VIII.B.5.g of 10 CFR 
part 52, appendix D, establishes a process for parties who believe that 
a licensee has not complied with paragraph VIII.B.5 when departing from 
Tier 2 information to petition to admit such a contention into the 
proceeding.\11\ Among other things, such a contention must bear on an 
asserted noncompliance with the ITAAC acceptance criteria and must also 
comply with the requirements of 10 CFR 2.309. Paragraph VIII.C.5 
establishes a process whereby persons who believe that a change must be 
made to an operational requirement approved in the design control 
document or a technical specification (TS) derived from the generic TS 
may petition to admit such a contention into the proceeding if certain 
requirements, in addition to those set forth in 10 CFR 2.309, are met.
---------------------------------------------------------------------------

    \11\ Tier 2 information is a category of information in a design 
control document that is incorporated by reference into a design 
certification rule. The definition of Tier 2 for the AP1000 design 
certification can be found at 10 CFR part 52, appendix D, paragraph 
II.E.
---------------------------------------------------------------------------

    In accordance with 10 CFR 2.309(i), answers to hearing requests are 
due in 25 days and no replies to answers are permitted. As reflected in 
10 CFR 2.309(j)(2), the Commission has decided that it will act as the 
presiding officer for determining whether to grant the hearing request. 
In accordance with Section 189a.(1)(B)(iii) of the AEA and 10 CFR 
2.309(j)(2), the Commission will expeditiously grant or deny the 
hearing request. As stated in 10 CFR 2.309(j)(2), this Commission 
decision may not be the subject of an appeal under 10 CFR 2.311. If a 
hearing request is granted, the Commission will designate the 
procedures that govern the hearing as provided by 10 CFR 2.310(j). In 
accordance with 10 CFR 2.309(g), hearing requests (and by extension 
answers to hearing requests) are not permitted to address the selection 
of hearing procedures under 10 CFR 2.310 for an ITAAC hearing.

B. Interim Operation

    The AEA provides for the possibility of interim operation, which is 
operation of the plant pending the completion of an ITAAC hearing. The 
potential for interim operation arises if the Commission grants a 
hearing request that satisfies the requirements of Section 
189a.(1)(B)(ii) of the AEA. If the hearing request is granted, Section 
189a.(1)(B)(iii) of the AEA directs the Commission to allow interim 
operation if it determines, after considering the petitioners' prima 
facie showing and any answers thereto, that there will be reasonable 
assurance of adequate protection of the public health and safety during 
a period of interim operation. As is evident from the statutory text, 
Congress included the interim operation provision to prevent an ITAAC 
hearing from unnecessarily delaying plant operation if the hearing 
extends beyond scheduled fuel load.\12\ As provided by 10 CFR 
52.103(c), the Commission will make the adequate protection 
determination for interim operation acting as the presiding officer. In 
accordance with 10 CFR 2.341(a), parties are prohibited from seeking 
further Commission review of a Commission decision allowing interim 
operation.
---------------------------------------------------------------------------

    \12\ The pertinent legislative history supports this view. 138 
Cong. Rec. S1686 (February 19, 1992) (statement of Sen. Johnston); 
S. Rep. No. 102-72 at 296 (1991).
---------------------------------------------------------------------------

    A number of issues concerning interim operation are discussed in 
SECY-13-0033 and the associated SRM, including the following points 
relevant

[[Page 43278]]

to the development of ITAAC hearing procedures:
     Because Section 185b. of the AEA requires the Commission 
to find that the acceptance criteria are met prior to operation, 
interim operation cannot be allowed until the Commission finds under 10 
CFR 52.103(g) that all acceptance criteria are met, including those 
acceptance criteria that are the subject of an ITAAC hearing.
     The NRC staff proposed, and the Commission approved, that 
the 10 CFR 52.103(g) finding be delegated to the NRC staff. Among other 
things, this delegation means that the Commission will not make, in 
support of interim operation, a merits determination prior to the 
completion of the hearing on whether the acceptance criteria are met.
     For operational programs and requirements that must be 
implemented upon a 10 CFR 52.103(g) finding, these programs and 
requirements would also be implemented in the event that the Commission 
allows interim operation in accordance with 10 CFR 52.103(c), given 
that the 10 CFR 52.103(g) finding would be made in support of interim 
operation.
     As provided by 10 CFR 52.103(h), ITAAC no longer 
constitute regulatory requirements after the 10 CFR 52.103(g) finding 
is made. In addition, ITAAC post-closure notifications pursuant to 10 
CFR 52.99(c)(2) are only required until the 10 CFR 52.103(g) finding is 
made. Therefore, ITAAC maintenance activities and associated ITAAC 
post-closure notifications would no longer be necessary or required 
after a 10 CFR 52.103(g) finding, including during any period of 
interim operation.
    Another issue addressed in SECY-13-0033 was the subject of 
extensive comments on the proposed procedures. As stated in SECY-13-
0033 and in the proposed procedures, the legislative history of the 
EPAct indicates that Congress did not intend the Commission to rule on 
the merits of the petitioner's prima facie showing when making the 
adequate protection determination for interim operation. Instead, 
Congress intended interim operation for situations in which the 
petitioner's prima facie showing relates to an asserted adequate 
protection issue that will not present adequate protection concerns 
during the interim operation period or for which mitigation measures 
can be taken to preclude potential adequate protection issues during 
the period of interim operation.
    As discussed in detail in Section 7.B of the Comment Summary 
Report, some commenters argued that the Commission's adequate 
protection determination for interim operation could be based on a pre-
hearing merits conclusion that the petitioner's prima facie showing is 
incorrect. The primary arguments in support of this position are as 
follows: (1) The position in SECY-13-0033 inappropriately constrains 
the Commission's determination on reasonable assurance of adequate 
protection and is contrary to longstanding interpretations of this 
broad concept. (2) Resort to the legislative history is inappropriate 
because the statutory language is clear. (3) Even if it were 
appropriate to consult the legislative history, the NRC misinterpreted 
it.
    None of these arguments have altered the NRC's position on the 
proper interpretation of the statutory language. With respect to 
argument (1), the NRC's position is not based on an interpretation of 
``reasonable assurance of adequate protection'' but on an 
interpretation of how the petitioner's prima facie showing and the 
answers thereto are to be ``consider[ed]'' when making the interim 
operation determination, as directed by Section 189a.(1)(B)(iii) of the 
AEA. Because the NRC's position is not based on an interpretation of 
``reasonable assurance of adequate protection,'' the NRC's position is 
not contrary to longstanding interpretations of this broad concept. 
Also, the NRC's position puts no constraints on the Commission's 
independent judgment in determining whether there is reasonable 
assurance of adequate protection during interim operation. The 
Commission will have already exercised its independent judgment on 
adequate protection matters when it determined that the petitioner made 
a prima facie showing that the operational consequences of not 
conforming with the acceptance criteria would be contrary to reasonable 
assurance of adequate protection of the public health and safety. The 
Commission will consider a different question with regard to interim 
operation: Whether there is reasonable assurance of adequate protection 
of the public health and safety during the period of interim operation 
(for example, because the issue will not arise during the period of 
interim operation or because the licensee proposed sufficient 
mitigation measures) notwithstanding the Commission's earlier finding 
of a prima facie showing.
    With respect to argument (2), the NRC acknowledges the ``plain 
meaning'' canon of statutory interpretation, but does not find it 
applicable to this statutory provision. The ``plain meaning'' canon 
applies only when the words of a statute are ``clear and unambiguous.'' 
2A Sutherland Statutes and Statutory Construction, Sec.  46:1 (7th ed. 
2007). However, the statutory interim operation provision does not 
clearly and unambiguously instruct the NRC on how to consider the 
petitioner's prima facie showing when making the interim operation 
determination. Nothing in the statutory language directs the NRC to 
make a merits determination on the petitioner's prima facie showing. In 
addition, the statutory provision can be viewed as ambiguous because it 
can alternatively be interpreted as a specially crafted stay provision 
focused on the question of irreparable harm (i.e., will the 
petitioner's adequate protection concerns arise during a period of 
interim operation). Because the statutory language is not clear and 
unambiguous as discussed in this paragraph, the plain meaning canon 
does not apply and it is appropriate to consider the legislative 
history.
    With respect to argument (3), the NRC does not agree that it 
misinterpreted the relevant legislative history. As discussed in the 
Comment Summary Report, the interim operation provision reached its 
final form as part of a Senate floor amendment. This amendment was 
sponsored, introduced, and explained by Senator Johnston, the floor 
manager of the bill and the Chairman of the Senate Committee that 
produced the bill, on the same day that the amendment was adopted by 
the Senate. Senator Johnston stated that interim operation was intended 
to be limited and that it was intended to apply where there was no 
question of safe operation of the plant, such as where the alleged 
safety concern would not arise during the interim period or where 
mitigation measures could be taken to avoid the problem during the 
interim operation period. In an analogous situation, the U.S. Supreme 
Court treated as authoritative the remarks made by an amendment's 
sponsor when, as here, the final language resulted from a floor 
amendment, there was no subsequent Congressional report on the 
provision, and the amendment's sponsor explained the meaning of the 
provision on the same day that it was adopted. North Haven Bd. of Educ. 
v. Bell, 456 U.S. 512, 526-27 (1982). Consequently, it is appropriate 
for the NRC to give substantial weight to Senator Johnston's remarks on 
the meaning of the interim operation provision. Interpreting Senator 
Johnston's remarks in light of the statutory language he was 
discussing, it is clear that the ``question about safe operation of the 
plant'' refers to the petitioner's prima facie showing

[[Page 43279]]

that operation is contrary to reasonable assurance of adequate 
protection of the public health and safety. Therefore, Senator 
Johnston's evident intent was that the Commission's adequate protection 
determination for interim operation would not be a merits determination 
that the petitioner's prima facie showing is, in fact, incorrect. In 
addition, the examples given by Senator Johnston of when interim 
operation would be appropriate contemplate that the Commission would 
make the adequate protection determination while accounting for the 
possibility that the petitioner's prima facie showing might be correct.
    Also, as discussed in the Comment Summary Report, an earlier 
version of the legislation directed the NRC to make a preliminary 
merits determination as part of its interim operation decision, but 
this preliminary merits determination language was later removed from 
the bill by the Senate amendment just discussed. Consistent with U.S. 
Supreme Court precedent, this removal of the preliminary merits 
determination language should be regarded as a decision by Congress to 
take a different approach. See INS v. Cardoza-Fonseca, 480 U.S. 421, 
442-43 (1987) (``Few principles of statutory construction are more 
compelling than the proposition that Congress does not intend sub 
silentio to enact statutory language that it has earlier discarded in 
favor of other language.'' (citations omitted)); Hamdan v. Rumsfeld, 
548 U.S. 557, 579-80 (2006) (``Congress' rejection of the very language 
that would have achieved the result the Government urges here weighs 
heavily against the Government's interpretation.'').
    In its comments, NEI states that Congress might have removed the 
preliminary merits determination language to afford the Commission 
maximum flexibility in making the adequate protection determination for 
interim operation. However, NEI offers no evidence for its view, and 
NEI's claim is contradicted by the legislative history. Senator 
Johnston explained that the changes made to the bill by Senate 
Amendment Number 1575 were intended to address concerns that Senators 
had about the bill. 138 Cong. Rec. S1143 (Feb. 6, 1992). Senator 
Johnston went on to state that ``[t]he authority to allow interim 
operation is limited'' and that interim operation was intended to apply 
to situations ``where there is no question about the safe operation of 
the plant.'' 138 Cong. Rec. S1143, S1173 (Feb. 6, 1992).
    Thus, in light of the relevant legislative history, the NRC has 
determined that the adequate protection determination for interim 
operation is not intended to be a merits determination on the 
petitioner's prima facie showing. Nevertheless, the answers to the 
petitioner's hearing request are relevant to, and important for making, 
the adequate protection determination for interim operation. The 
answers filed by the licensee and the NRC staff could be considered in 
determining whether the prima facie showing has been made and to which 
aspects of operation the prima facie showing applies--such as whether 
the adequate protection concern is one of long-term safety or the 
concern only implicates adequate protection at certain operational 
levels (e.g., at greater than five percent power). The licensee's 
answer might also propose mitigation measures with an explanation of 
how reasonable assurance of adequate protection would be maintained 
during an interim period even if the petitioner's prima facie showing 
proves to be correct.

C. Initial Decision

    After the completion of an ITAAC hearing, the presiding officer 
will issue an initial decision pursuant to 10 CFR 2.340(c) on whether 
the acceptance criteria have been or will be met. As provided by 10 CFR 
2.340(f), an initial decision finding that acceptance criteria in a COL 
have been met is immediately effective upon issuance unless the 
presiding officer finds that good cause has been shown by a party why 
the initial decision should not become immediately effective. In 
accordance with 10 CFR 2.340(j), the Commission or its delegate (i.e., 
the NRC staff) will make the 10 CFR 52.103(g) finding within 10 days 
from the date of issuance of the initial decision, if:
    (1) The Commission or its delegate can find that the acceptance 
criteria not within the scope of the initial decision are met,
    (2) the presiding officer has issued a decision that the contested 
acceptance criteria have been met or will be met, and the Commission or 
its delegate can thereafter find that the contested acceptance criteria 
are met, and
    (3) notwithstanding the pendency of a 10 CFR 2.345 petition for 
reconsideration, a 10 CFR 2.341 petition for review, a 10 CFR 2.342 
stay motion, or a 10 CFR 2.206 petition.
    Section 2.340(j) is intended to describe how the 10 CFR 52.103(g) 
finding may be made after an initial decision by the presiding officer 
that the acceptance criteria have been, or will be, met. However, in 
amending 10 CFR 2.340(j) in the ITAAC Maintenance Rule, the Commission 
stated (77 FR at 51885-86) that 10 CFR 2.340(j) was being amended to 
``clarify some of the possible paths'' for making the 10 CFR 52.103(g) 
finding after the presiding officer's initial decision and that 10 CFR 
2.340(j) ``is not intended to be an exhaustive `roadmap' to a possible 
10 CFR 52.103(g) finding that acceptance criteria are met.'' Thus, 
there may be situations in which the mechanism and circumstances 
described by 10 CFR 2.340(j) are not wholly applicable. For example, if 
interim operation is allowed, then the 10 CFR 52.103(g) finding will 
have been made prior to the initial decision. In such a case, there is 
no need for another 10 CFR 52.103(g) finding after an initial decision 
finding that the contested acceptance criteria have been met because 
the initial decision will have confirmed the correctness of the 10 CFR 
52.103(g) finding with respect to the contested acceptance 
criteria.\13\
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    \13\ Other scenarios not covered by 10 CFR 2.340(j) include 
those in which the presiding officer does not find that the 
acceptance criteria have been or will be met, a decision that might 
be made after a period of interim operation has been authorized. How 
a negative finding by the presiding officer would be resolved by a 
licensee, and the effect such a finding would have on interim 
operation, would depend on the facts of the case and the nature of 
the presiding officer's decision. Therefore, such eventualities are 
not further addressed in these generic procedures.
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V. General Approach to ITAAC Hearing Procedure Development

    With these procedures, the NRC has attempted to develop an 
efficient and feasible process that is consistent with previously 
established law, regulation, and policy and that will allow the 
presiding officer and the parties a fair opportunity to develop a sound 
record for decision. To achieve this objective, the NRC has used the 
following general approach.

A. Use of Existing Part 2 Procedures

    The procedures described in this document are based on the NRC's 
rules of practice in 10 CFR part 2, modified as necessary to conform to 
the expedited schedule and specialized nature of ITAAC hearings. The 
ITAAC hearing procedures have been modeled on the existing rules of 
practice because the existing rules have proven effective in promoting 
a fair and efficient process in adjudications and there is a body of 
precedent interpreting and applying these provisions. In addition, 
using the existing rules to the extent possible could make it easier 
for potential participants in the hearing to apply the procedures if 
they are already familiar with the existing rules.

[[Page 43280]]

B. Choice of Presiding Officer To Conduct an Evidentiary Hearing

    As explained in Section III.G of this document, the NRC has decided 
that for evidentiary hearings, an ASLB or a single legal judge 
(assisted as appropriate by technical advisors) will preside over the 
hearing. The case-specific choice on whether to employ an ASLB or a 
single legal judge for an evidentiary hearing will ordinarily be made 
by the Chief Administrative Judge of the Atomic Safety and Licensing 
Board Panel after the Commission grants the hearing request. However, 
the Commission retains the option of choosing who will conduct the 
evidentiary hearing in each proceeding. To ensure that the selected 
presiding officer can upon designation immediately commence work on 
evidentiary hearing activities, the Chief Administrative Judge will be 
expected to identify, within a reasonable period of time prior to the 
Commission's decision on the hearing request, administrative judges who 
might be selected to serve as the presiding officer. The Commission 
expects the selected judges to familiarize themselves with the ITAAC 
hearing procedures and the participants' pleadings before a decision on 
the hearing request.

C. Schedule

    As explained earlier, Section 189a.(1)(B)(v) of the AEA provides 
that the Commission shall, to the maximum possible extent, render a 
decision on issues raised by the hearing request within 180 days of the 
publication of the notice of intended operation or the anticipated date 
for initial loading of fuel into the reactor, whichever is later. While 
the AEA does not require that the hearing be completed by the later of 
these two dates in all cases, the procedures described in this notice 
have been developed with the intent of satisfying the statutory goal 
for timely completion of the hearing. However, there may be cases where 
the ITAAC hearing extends beyond scheduled initial fuel load because of 
unusual situations or because of circumstances beyond the control of 
the NRC.
    Because the Commission intends to publish the notice of intended 
operation at least 210 days before scheduled initial fuel load, the 
later of the two dates identified in Section 189a.(1)(B)(v) of the AEA 
will, in practice, be scheduled initial fuel load. If the notice of 
intended operation is issued 210 days before scheduled fuel load, 85 
days will be consumed by the 60-day period for filing hearing requests 
and the 25-day period for filing answers to hearing requests. Thus, 
meeting the statutory goal for completing the hearing will ordinarily 
require that the NRC be able to determine whether to grant the hearing 
request, hold a hearing on any admitted contentions, and render a 
decision after hearing within 125 days of the submission of answers to 
hearing requests.\14\
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    \14\ A licensee is required by 10 CFR 52.103(a) to notify the 
NRC of its scheduled date for initial fuel load no later than 270 
days before the scheduled date and to update its schedule every 30 
days thereafter. While the licensee can, consistent with 10 CFR 
52.103(a), move up its scheduled fuel load date after the notice of 
intended operation is published, such a contraction in the 
licensee's fuel load schedule would have no effect on the hearing 
schedule for the reasons given in Section 5.G of the Comment Summary 
Report. For the purpose of meeting the Section 189a.(1)(B)(iii) of 
the AEA directive to expeditiously complete the hearing, the 
``anticipated date for initial loading of fuel'' is set once the 
notice of intended operation is issued and cannot thereafter be 
moved up. However, as a practical matter, the NRC would consider 
such a contraction in the licensee's schedule as part of its process 
for making the 10 CFR 52.103(g) finding and the adequate protection 
determination for interim operation.
---------------------------------------------------------------------------

    To meet the statutory objective for timely completion of the 
hearing, the NRC must complete the hearing process much faster than is 
usually achieved in NRC practice for other hearings. However, the ITAAC 
hearing process is different from other NRC hearings in that the 
contested issues will be narrowly constrained by the terms of the ITAAC 
and the required prima facie showing. In addition, the NRC anticipates 
that with the required prima facie showing and the answers thereto, the 
parties will have already substantially established their hearing 
positions and marshalled their supporting evidence. Furthermore, the 
parties' initial filings, in conjunction with other available 
information (including licensee ITAAC notifications describing the 
completion, or the plans for completing, each ITAAC), will provide the 
parties with at least a basic understanding of the other parties' 
positions from the beginning of the proceeding.
    Given the differences between an ITAAC hearing and other NRC 
hearings, the NRC took several steps to expedite the ITAAC hearing 
process. The most important step is that the hearing preparation period 
will begin as soon as the hearing request is granted. In other NRC 
proceedings associated with license applications, hearing requests are 
due soon after the license application is accepted for NRC staff 
review, and the preparation of pre-filed written testimony and position 
statements does not begin until months or years later, after the NRC 
staff completes its review. However, the parties to an ITAAC hearing 
can begin preparing their testimony and position statements as soon as 
a hearing request is granted given the focused nature of an ITAAC 
hearing and given the information and evidence already available to, 
and established by, the parties at that point in the proceeding. 
Beginning the hearing preparation process upon the granting of a 
hearing request is expected to dramatically reduce the length of the 
hearing process, which should reduce overall resource burdens on 
participants in the hearing.
    Another important step is to eliminate procedures from the hearing 
process that are time-consuming, resource-intensive, and unnecessary 
under the particular circumstances of an ITAAC proceeding. For example, 
because the hearing will be concluded within a few months of the 
granting of a hearing request, there is little purpose served by 
summary disposition motions and contested motions to dismiss.\15\ In 
addition, by preparing ahead of time detailed procedures for the 
conduct of ITAAC hearings, the NRC is avoiding delays that might occur 
if the presiding officer needed to make ad hoc decisions on how to 
address foreseeable issues that could have been considered earlier.
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    \15\ However, to avoid holding a hearing unnecessarily, joint 
motions to dismiss that are agreed to by all parties will be 
entertained.
---------------------------------------------------------------------------

    Even with the steps just described, meeting the statutory directive 
to expeditiously complete the ITAAC hearing will require the parties to 
exercise a high degree of diligence in satisfying their obligations as 
participants in the hearing. To instill discipline with respect to 
meeting the hearing schedule, the ITAAC hearing procedures provide that 
the Commission, when imposing procedures for the conduct of the 
hearing, will set a strict deadline for the issuance of a presiding 
officer's initial decision after the hearing. This strict deadline, 
which will be a calendar date, can only be extended upon a showing that 
``unavoidable and extreme circumstances'' \16\ necessitate the delay. 
This strict deadline provision, which will be included whether the 
Commission, an ASLB, or a single legal judge is the presiding officer, 
will serve to prevent delays in the hearing decision, including delays 
in any intermediate step of the hearing process that might delay the 
hearing decision.
---------------------------------------------------------------------------

    \16\ This standard is taken from the Policy on Conduct of 
Adjudicatory Proceedings, CLI-98-12, 48 NRC 18, 21 (1998).
---------------------------------------------------------------------------

    In addition, the ITAAC hearing procedures shorten a number of 
deadlines from those provided by current regulations. While this will

[[Page 43281]]

require greater alertness and efficiency on the part of hearing 
participants, the deadlines in these procedures are feasible, and the 
burden on participants will be somewhat ameliorated by the focused 
nature of ITAAC hearings. Also, a shorter hearing period at the end of 
construction should lessen the overall resource burden on participants, 
which may be advantageous to participants with limited financial 
resources.\17\
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    \17\ For example, several litigation processes, such as summary 
disposition motions and written motions in limine, have been 
eliminated. Also, petitioners will not need to follow the 
substantial volume of licensee-NRC staff correspondence that would 
be expected over a several-year application period to determine 
whether to file new or amended contentions. Further, with a shorter 
hearing process at the end of construction, fewer events should 
occur that might give rise to new or amended contentions, and the 
parties' mandatory disclosures should consume fewer resources.
---------------------------------------------------------------------------

    The procedures in this notice have been developed on the assumption 
that the notice of intended operation will be issued 210 days before 
scheduled fuel load. There is a practical difficulty with issuing the 
notice of intended operation earlier than 210 days before scheduled 
fuel load: Uncompleted ITAAC notifications are not required to be 
submitted until 225 days before scheduled fuel load. Until these 
uncompleted ITAAC notifications are received, members of the public 
will not have a basis on which to file contentions with respect to 
uncompleted ITAAC. Thus, the notice of intended operation cannot be 
issued until after the receipt and processing of all uncompleted ITAAC 
notifications. Nevertheless, if a licensee voluntarily submits all 
uncompleted ITAAC notifications somewhat earlier than 225 days before 
scheduled initial fuel load, then the notice of intended operation 
could be issued earlier. Early issuance of the notice of intended 
operation might facilitate the completion of the hearing by scheduled 
fuel load notwithstanding the occurrence of some event that would 
otherwise cause delay.
    As discussed in Section 5.B of the Comment Summary Report, the 
licensees currently constructing the Vogtle and V.C. Summer reactors 
have stated in their written comments that it is feasible to submit 
uncompleted ITAAC notifications several months earlier than required. 
Given this statement, and given the schedule advantages accruing from 
early publication of the notice of intended operation, the NRC has 
decided to publish the notice of intended operation up to 75 days 
earlier than 210 days before scheduled fuel load (i.e., 285 days before 
scheduled fuel load) based on the licensee's voluntary early submission 
of the uncompleted ITAAC notifications. However, early publication of 
the notice of intended operation will only occur if the NRC has 
received either an uncompleted ITAAC notification or an ITAAC closure 
notification for every ITAAC. With early publication, all dates in the 
hearing schedule would be moved up accordingly.
    The NRC will attempt to publish the notice of intended operation 15 
days after it has received uncompleted ITAAC notifications covering all 
ITAAC that have not yet been completed. To make early publication of 
the notice of intended operation efficient and effective, some 
additional practical steps must be taken:
     In addition to meeting the requirements of 10 CFR 
52.103(a), the licensee will need to informally apprise the NRC of the 
licensee's fuel load schedule well enough in advance to allow the NRC 
to prepare to issue the notice of intended operation on a more 
expedited basis.
     The NRC will not publish the notice of intended operation 
until the licensee has submitted a 10 CFR 52.103(a) fuel load schedule. 
Therefore, the licensee should submit this 10 CFR 52.103(a) schedule 
with its last uncompleted ITAAC notification if the licensee has not 
already done so.
     The uncompleted ITAAC notifications will need to specify 
the coverage period of the uncompleted ITAAC notifications (i.e., 
``intended to cover all ITAAC not completed by [X] days before 
scheduled fuel load''). If a coverage period is not specified, the NRC 
will assume that the coverage period begins 225 days before scheduled 
fuel load as specified by 10 CFR 52.99(c)(3).
     Any ITAAC completed before the specified coverage period 
will not be the subject of an uncompleted ITAAC notification but will 
be the subject of an ITAAC closure notification.

D. Hearing Formats

    The hearing format used to resolve admitted contentions depends, in 
the first instance, on whether testimony will be necessary to resolve 
the contested issues. While testimony is employed in most NRC hearings 
because contentions usually involve issues of fact, the NRC sometimes 
admits legal contentions (i.e., contentions that do not involve a 
dispute of fact but raise only legal issues). See (e.g., U.S. 
Department of Energy (High-Level Waste Repository), CLI-09-14, 69 NRC 
580, 588-591 (2009)). The procedures for legal contentions, which are 
explained in more detail later in this notice, will involve the 
Commission setting a briefing schedule at the time it grants the 
hearing request, with the briefing schedule determined on a case-by-
case basis.
    Hearings involving testimony are necessarily more complex. A 
threshold question for such hearings is whether testimony should be 
delivered entirely orally, delivered entirely in written form, or as in 
the case of proceedings under subpart L of 10 CFR part 2, delivered 
primarily in written form with an oral hearing being used primarily to 
allow the presiding officer to gain a better understanding of the 
testimony and to clarify the record. For the following reasons, the NRC 
believes that the best choice is the subpart L approach, which is the 
most widely used approach in NRC hearings and which has demonstrated 
its effectiveness since implementation in its current form in 2004.
    The subpart L approach has many benefits. Written testimony and 
statements of position allow the parties to provide their views with a 
greater level of clarity and precision, which is important for hearings 
on technical matters. With the positions of the parties clearly 
established, oral questions and responses can be used to quickly and 
efficiently probe the positions of the parties. The use of oral 
questions and responses is more efficient than written questions and 
responses because oral questioning allows for back-and-forth 
communication between the presiding officer and the witnesses that can 
be completed more quickly than written questioning. In addition, the 
submission of testimony prior to the oral hearing increases the quality 
of the oral hearing because it allows more time for the presiding 
officer to thoughtfully assess the testimony and carefully craft 
questions that will best elucidate those matters crucial to the 
presiding officer's decision. Finally, certain efficiencies can be 
gained by the use of written testimony that are not available with 
entirely oral testimony. In subpart L proceedings, pre-filed written 
testimony and exhibits are often admitted en masse at the beginning of 
the oral hearing, and the presiding officer's questioning can be 
completed in a relatively short amount of time. In the absence of pre-
filed written testimony, however, an oral hearing would consume more 
time because the entirety of the evidentiary record would need to be 
established sequentially and orally, and the admission of exhibits 
would be subject to the more cumbersome and time-consuming admission 
process typical of trials.

[[Page 43282]]

    The NRC considered, but rejected, a hearing format based on the 
procedures in 10 CFR part 2, subpart N, ``Expedited Proceedings with 
Oral Hearings.'' As the Commission explained in the final rule entitled 
``Changes to Adjudicatory Process'' (69 FR 2182, 2214-15; January 14, 
2004), subpart N is intended to be a `` `fast track' process for the 
expeditious resolution of issues in cases where the contentions are few 
and not particularly complex, and therefore may be efficiently 
addressed in a short hearing using simple procedures and oral 
presentations.'' In addition, ``the [subpart N] procedures were 
developed to permit a quick, relatively informal proceeding where the 
presiding officer could easily make an oral decision from the bench, or 
in a short time after conclusion of the oral phase of the hearing.'' At 
this time, before the first ITAAC hearing commences, the NRC does not 
have sufficient experience to conclude that the issues to be resolved 
in an ITAAC hearing will be simple enough to profitably employ the 
procedures of subpart N and forego the advantages accruing from written 
testimony and statements of position.
    The NRC also did not adopt a legislative hearing track because, as 
the NRC has previously determined and as described in Section 5.E of 
the Comment Summary Report, legislative hearings are well suited to the 
development of ``legislative facts'' (i.e., general facts relating to 
questions of policy and discretion) and are not well suited to 
resolving either legal issues or disputes of fact relating to the 
occurrence of a past event. Because an ITAAC hearing will involve a 
focused inquiry regarding detailed technical questions, the NRC does 
not believe that the legislative hearing format is tailored to resolve 
these questions.
    Nonetheless, the Commission will continue to look for ways to 
enhance the ITAAC hearing process going forward and will examine 
whether these, or other approaches, could result in an improved process 
after conducting the first ITAAC hearings.

VI. Final General ITAAC Hearing Procedures

    Employing the general approach described in the previous section, 
the NRC has developed four templates with procedures for the conduct of 
an ITAAC hearing. These templates were provided with the proposed 
procedures in draft form for comment and have been revised to reflect 
changes to the proposed procedures that are described in Section III of 
this notice. The first template, Final Template A, ``Notice of Intended 
Operation and Associated Orders'' (ADAMS Accession No. ML16167A469), 
includes the notice of intended operation, which informs members of the 
public of their opportunity to file a hearing request, includes an 
order imposing procedures for requesting access to SUNSI and SGI for 
the purposes of contention formulation (SUNSI-SGI Access Order),\18\ 
and includes an order imposing additional procedures specifically 
pertaining to an ITAAC hearing.
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    \18\ SUNSI-SGI Access Orders accompany hearing notices in cases 
where the NRC believes that a potential party may deem it necessary 
to obtain access to SUNSI or SGI for the purposes of meeting 
Commission requirements for intervention. See 10 CFR 2.307(c). Given 
the range of matters covered by the ITAAC, it is appropriate to 
issue a SUNSI-SGI Access Order with the notice of intended 
operation.
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    The second, third, and fourth templates (Templates B, C, and D) are 
for Commission orders imposing procedures after the Commission has made 
a determination on the hearing request. Specifically, the second 
template, Final Template B ``Procedures for Hearings Involving 
Testimony'' (ADAMS Accession No. ML16167A471), includes procedures for 
the conduct of a hearing involving testimony. The third template, Final 
Template C ``Procedures for Hearings Not Involving Testimony'' (ADAMS 
Accession No. ML16167A475), includes procedures for resolving legal 
contentions. The fourth template, Final Template D ``Procedures for 
Resolving Claims of Incompleteness'' (ADAMS Accession No. ML16167A479), 
includes procedures for resolving valid claims of incompleteness.
    One issue not addressed by the templates is the potential for delay 
caused by the need to undergo a background check (including a criminal 
history records check) for access to SGI. This background check can 
take several months, and delay could occur if the persons seeking 
access to SGI are not already cleared for access and do not seek 
clearance until the notice of intended operation is issued. However, 
the ``Procedures to Allow Potential Intervenors to Gain Access to 
Relevant Records that Contain Sensitive Unclassified Non-Safeguards 
Information or Safeguards Information'' (SUNSI-SGI Access Procedures) 
(February 29, 2008) (ADAMS Accession No. ML080380626) provide a ``pre-
clearance'' process, by which a potential party who might seek access 
to SGI is allowed to request initiation of the necessary background 
check in advance of the notice providing an opportunity to request a 
hearing. Therefore, to avoid the potential for delays from background 
checks, the NRC contemplates that a plant-specific Federal Register 
notice announcing a pre-clearance process would be published 420 days 
before scheduled fuel load, based on the licensee's estimate at the 
time, which would be at least 135 days prior to the expected 
publication of the notice of intended operation for that plant.
    This pre-clearance notice will state that the required background 
check forms and fee should be submitted within 20 days of the notice to 
allow enough time for the completion of the background check prior to 
the publication of the notice of intended operation. This ``pre-
clearance notice'' will also inform potential parties that the NRC will 
not delay its actions in completing the hearing or making the 10 CFR 
52.103(g) finding because of delays from background checks for persons 
seeking access to SGI. In other words, members of the public will have 
to take the proceeding as they find it once they ultimately obtain 
access to SGI for contention formulation. The pre-clearance process is 
designed to prevent the SGI background-check process from becoming a 
barrier to timely public participation in the hearing process. As 
stated in Attachment 1 to the SUNSI-SGI Access Procedures (p. 11), 
``given the strict timelines for submission of and rulings on the 
admissibility of contentions (including security-related contentions) . 
. . potential parties should not expect additional flexibility in those 
established time periods if they decide not to exercise the pre-
clearance option.''
    In the following subsections, this notice provides a broad overview 
of the procedures and addresses certain significant procedures 
described in the templates. Certain procedures of lesser significance, 
and the rationales therefor, are described solely in the templates.

A. Notice of Intended Operation

    The Federal Register notice of intended operation, the contents of 
which are governed by 10 CFR 2.105, will provide that any person whose 
interest may be affected by operation of the plant, may, within 60 
days, request the Commission to hold a hearing on whether the facility 
as constructed complies, or on completion will comply, with the 
acceptance criteria in the COL. Among other things, the notice of 
intended operation (1) will specifically describe how the hearing 
request and answers thereto may be filed, (2) will identify the 
standing, contention admissibility, and other requirements applicable 
to the hearing request and answers thereto, and (3) will identify where 
information that is

[[Page 43283]]

potentially relevant to a hearing request may be obtained. The notice 
of intended operation also will establish a milestone of 30 days after 
the answers for a Commission ruling on the hearing request. This 
milestone is consistent with the statutory directive that rulings on 
hearing requests be made expeditiously and is necessary to allow 
sufficient time for the hearing if the request is granted. In addition, 
the notice of intended operation will be accompanied by a SUNSI-SGI 
Access Order and an order imposing additional procedures specifically 
pertaining to an ITAAC hearing (Additional Procedures Order). The 
following subsections describe the significant procedures included in 
the notice of intended operation template.
1. Prima Facie Showing
    To obtain a hearing on whether the facility as constructed 
complies, or upon completion will comply, with the acceptance criteria 
in the combined license, Section 189a.(1)(B)(ii) of the AEA provides 
that a petitioner's request for hearing shall show, prima facie, that 
one or more of the acceptance criteria in the combined license have not 
been, or will not be met, and the specific operational consequences of 
nonconformance that would be contrary to providing reasonable assurance 
of adequate protection of the public health and safety. This 
requirement is implemented in 10 CFR 2.309(f)(1)(vii), which requires 
this prima facie showing as part of the contention admissibility 
standards. Without meeting this requirement, the contention cannot be 
admitted and the hearing request cannot be granted.
    In making this prima facie showing, the Additional Procedures Order 
will state that any declaration of an eyewitness or expert witness 
offered in support of contention admissibility needs to be signed by 
the eyewitness or expert witness in accordance with 10 CFR 2.304(d). If 
declarations are not signed, their content will be considered, but they 
will not be accorded the weight of an eyewitness or an expert witness, 
as applicable, with respect to satisfying the prima facie showing 
required by 10 CFR 2.309(f)(1)(vii). The purpose of this provision is 
to ensure that a position that is purportedly supported by an expert 
witness or an eyewitness is actually supported by that witness.
2. Claims of Incompleteness
    While a prima facie showing is required before a contention can be 
admitted and a hearing request granted, 10 CFR 2.309(f)(1)(vii) 
provides a process for petitioners to claim that the licensee's 10 CFR 
52.99(c) report is incomplete and that this incompleteness prevents the 
petitioner from making the necessary prima facie showing. The 
petitioner must identify the specific portion of the licensee's 10 CFR 
52.99(c) report that is incomplete and explain why this deficiency 
prevents the petitioner from making the necessary prima facie 
showing.\19\ Final Template A includes more detail on the standards for 
claims of incompleteness. If the Commission determines that the claim 
of incompleteness is valid, then it will issue an order, described 
later in this notice, requiring the licensee to provide the additional 
information and providing a process for the petitioner to file a 
contention based on the additional information. If the petitioner files 
an admissible contention thereafter, and all other hearing request 
requirements have been met, then the hearing request will be granted.
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    \19\ For claims of incompleteness, the ``incompleteness'' refers 
to a lack of required information in a licensee's ITAAC 
notification, not to whether the ITAAC has yet to be completed. 
Thus, a valid claim of incompleteness with respect to an uncompleted 
ITAAC notification must identify, among other things, an 
insufficient description in the notification of how the licensee 
will successfully complete the ITAAC.
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    Before filing a claim of incompleteness, the petitioner is required 
to consult with the licensee regarding access to the purportedly 
missing information. Consultation may obviate the need for petitioners 
to file, or the Commission to rule on, claims of incompleteness. 
Therefore, consultation could shorten the hearing schedule and conserve 
participants' and the Commission's resources. The NRC has also imposed 
procedures addressing the possibility that a petitioner will seek SUNSI 
or SGI from the licensee. Additional discussion of the consultation and 
the SUNSI-SGI access provisions is in Section III.D of this document 
and Sections 4.E and 4.I of the Comment Summary Report.
3. Interim Operation
    As stated earlier, the AEA requires the Commission to determine, 
after considering the petitioner's prima facie showing and answers 
thereto, whether there is reasonable assurance of adequate protection 
of the public health and safety during a period of interim operation 
while the hearing is being completed. The Commission's adequate 
protection determination for interim operation is not to be based on a 
merits determination with respect to the petitioner's prima facie 
showing or any 10 CFR 52.103(g) finding by the NRC staff. A statement 
to this effect will be included in any Commission adequate protection 
determination.
    Because the adequate protection determination for interim operation 
is based on the participants' initial filings, the notice of intended 
operation will specifically request information from the petitioners, 
the licensee, and the NRC staff regarding the time period and modes of 
operation during which the adequate protection concern arises and any 
mitigation measures proposed by the licensee. The notice of intended 
operation will also inform the petitioners, the NRC staff, and the 
licensee that, ordinarily, their initial filings will be their only 
opportunity to address adequate protection during interim operation.
    Because the Commission's interim operation determination is a 
technical finding, a proponent's views regarding adequate protection 
during interim operation must be supported with alleged facts or expert 
opinion, including references to the specific sources and documents on 
which the proponent relies. Any expert witness or eyewitness 
declarations, including a statement of the qualifications and 
experience of the expert, must be signed in accordance with 10 CFR 
2.304(d). The probative value that the NRC accords to a proponent's 
position on adequate protection during interim operation will depend on 
the level and specificity of support provided by the proponent, 
including the qualifications and experience of each expert.
    If the Commission grants the hearing request, it may determine that 
additional briefing is necessary to support an adequate protection 
determination. If the Commission makes determinations that additional 
briefing is necessary on the adequate protection determination, then it 
will issue a briefing order concurrently with the granting of the 
hearing request. In addition, if mitigation measures are proposed by 
the licensee in its answer to the hearing request, then the Commission 
will issue a briefing order allowing the NRC staff and the petitioners 
an opportunity to address adequate protection during interim operation 
in light of the mitigation measures proposed by the licensee in its 
answer.\20\
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    \20\ Because an interim operation determination is necessary 
only if contentions are admitted, it makes sense to have additional 
briefing on licensee-proposed mitigation measures only after a 
decision on the hearing request. However, as explained later, a 
different process applies to contentions submitted after the hearing 
request is granted because of the greater need for an expedited 
decision on interim operation.

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[[Page 43284]]

    The Commission is reserving its flexibility to make the interim 
operation determination at a time of its discretion. Since the purpose 
of the interim operation provision is to prevent the hearing from 
unnecessarily delaying fuel load, the Commission intends to make the 
interim operation determination by scheduled fuel load.
    If the Commission determines that there is adequate protection 
during the period of interim operation, a request to stay the 
effectiveness of this decision will not be entertained. The interim 
operation provision serves the purpose of a stay provision because it 
is the Congressionally-mandated process for determining whether the 10 
CFR 52.103(g) finding that the acceptance criteria are met will be 
given immediate effect. The Commission's decision on interim operation 
becomes final agency action once the NRC staff makes the 10 CFR 
52.103(g) finding and issues an order allowing interim operation.
    To provide guidance on the relationship between the interim 
operation provision and the 10 CFR 52.103(g) finding, the Commission is 
describing when interim operation might be allowed and when the 10 CFR 
52.103(g) finding might be made in the following scenarios. These 
scenarios all assume that the NRC staff has been able to determine by 
scheduled fuel load that all acceptance criteria are met and that any 
initial decision after hearing has found conformance with the 
acceptance criteria.
    (1) If the initial decision after the hearing is issued before 
scheduled fuel load, then there will no interim operation by definition 
(i.e., interim operation is defined as operation pending the completion 
of the hearing). The making of the 10 CFR 52.103(g) finding after the 
initial decision will be governed by 10 CFR 2.340(j), as applicable.
    (2) If the initial decision is not issued before scheduled fuel 
load, then interim operation will be allowed if the NRC staff has made 
the 10 CFR 52.103(g) finding and the Commission has made a positive 
adequate protection determination for interim operation for all 
admitted contentions. Interim operation will be allowed in this 
circumstance notwithstanding the pendency of any pleading, including a 
stay request.
    (3) If the initial decision is not issued before scheduled fuel 
load, and the Commission has not made a positive adequate protection 
determination for interim operation for all admitted contentions, then 
the NRC staff will wait to issue the 10 CFR 52.103(g) finding until the 
earlier of (1) the issuance of the initial decision after the hearing, 
or (2) the Commission's issuance of a positive adequate protection 
determination for interim operation on all admitted contentions. If the 
Commission has made a negative interim operation determination for one 
or more contentions, then the NRC staff will wait to issue the 10 CFR 
52.103(g) until after the completion of the hearing on those 
contentions. There does not appear to be any benefit from making the 10 
CFR 52.103(g) finding during the pendency of the hearing without a 
positive adequate protection determination for all admitted contentions 
because the 10 CFR 52.103(g) finding could not be given immediate 
effect with respect to allowing operation. In addition, a number of 
regulatory and license provisions pertaining to operation, including 
the 40-year term of the license and the implementation of technical 
specifications and other operational programs, are triggered by the 10 
CFR 52.103(g) finding. Because the plant would not be able to operate 
in such a scenario, it would not make sense to trigger these other 
operation-related requirements.
    (4) If there are no admitted contentions, the NRC staff can make 
the 10 CFR 52.103(g) finding notwithstanding the pendency of any 
pleading, including appeals, motions to reopen, stay requests, or 
proposed new or amended contentions filed after the deadline. As a 
general matter, the mere filing of a pleading does not serve to stay 
any action. In addition, the structure of the COL provisions in 
Sections 185b. and 189a.(1)(B) of the AEA indicates that operation is 
automatically stayed only if the Commission has granted a hearing 
request but the hearing on the contention has not been completed. An 
automatic stay in this circumstance makes sense because the Commission 
will have determined that the petitioner made the required prima facie 
showing (i.e., a robust showing of, among other things, a significant 
safety problem at some point during reactor operation). The interim 
operation provision allows operation during the pendency of the hearing 
if the Commission determines that this possible harm does not apply, or 
can be mitigated, during the period of interim operation that is 
contemplated. In this regard, the interim operation provision is a 
special type of stay provision specially crafted for ITAAC hearings and 
focused on the issue of irreparable harm. However, in the absence of an 
admitted contention (i.e., in the absence of a Commission determination 
that the petitioner has made the required prima facie showing), there 
has been no Commission determination of a robust showing of possible 
harm during operation, and the interim operation provision does not 
come into effect.\21\ Therefore, in the absence of an admitted 
contention and unless directed otherwise by the Commission, the 10 CFR 
52.103(g) finding can be made and will be given effect.
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    \21\ As is stated in the AEA, the interim operation provision 
only comes into force ``[i]f the [hearing] request is granted.'' 
Section 189a.(1)(B)(iii) of the AEA.
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4. Hearing Requests, Intervention Petitions, and Motions for Leave To 
File New or Amended Contentions or Claims of Incompleteness After the 
Original Deadline
    The notice of intended operation includes procedures governing 
hearing requests, intervention petitions, and motions for leave to file 
new or amended contentions or claims of incompleteness that are filed 
after the original deadline because such filings might be made between 
the deadline for hearing requests and a Commission decision on hearing 
requests. Filings after the initial deadline must show good cause as 
defined by 10 CFR 2.309(c), which includes the 10 CFR 2.309(c)(1)(iii) 
requirement that the filing has been submitted in a timely fashion 
based on the availability of new information. In other proceedings, 
licensing boards have typically found that 10 CFR 2.309(c)(1)(iii) is 
satisfied if the filing is made within 30 days of the availability of 
the information upon which the filing is based, and 10 CFR 2.309(i)(1) 
allows 25 days to answer the filing. The NRC believes that timeliness 
expectations should be clearly stated in the notice of intended 
operation, but is shortening these time periods in the interest of 
expediting the proceeding.
    As discussed in Section 4.J of the Comment Summary Report, the NRC 
has decided that the deadline for hearing requests, intervention 
petitions, and motions for leave to file new or amended contentions or 
claims of incompleteness filed after the deadline will be 20 days after 
the event giving rise to the need for the filing. In the context of 
claims of incompleteness, this 20-day period will be triggered by the 
date that the ITAAC notification (or a redacted version thereof) 
becomes available to the public. Answers to these filings will be due 
14 days thereafter. Notwithstanding these deadlines, the NRC encourages 
participants to file as

[[Page 43285]]

soon as possible before these deadlines if it is possible for them to 
do so.
    The Commission would also need to consider issues associated with 
interim operation with respect to any grant of a hearing request, 
intervention petition, or new or amended contention filed after the 
original deadline. Therefore, the interim operation provisions 
described previously will also apply to hearing requests, intervention 
petitions, or new or amended contentions filed after the original 
deadline. A claim of incompleteness, however, does not bear on interim 
operation because interim operation is intended to address whether 
operation shall be allowed notwithstanding the petitioner's prima facie 
showing, while a claim of incompleteness is premised on the 
petitioner's inability to make a prima facie showing. Interim operation 
would be addressed after any incompleteness was cured if the petitioner 
files a contention on that topic.
    In its 2008 Policy Statement (73 FR at 20973), the Commission 
stated that to lend predictability to the ITAAC compliance process, it 
would be responsible for three decisions related to ITAAC hearings: (1) 
The decision on whether to grant the hearing request, (2) the adequate 
protection determination for interim operation, and (3) the designation 
of the ITAAC hearing procedures. Accordingly, the NRC believes that it 
would be consistent with this policy choice for the Commission to rule 
on all hearing requests, intervention petitions, and motions for leave 
to file new contentions or claims of incompleteness that are filed 
after the original deadline. If the Commission grants the hearing 
request, intervention petition, or motion for leave to file new 
contentions, the Commission will designate the hearing procedures and 
schedule for the newly admitted contentions and would determine whether 
there will be adequate protection during the period of interim 
operation with respect to the newly admitted contentions. If the 
Commission determines that a new or amended claim of incompleteness 
demonstrates a need for additional information in accordance with 10 
CFR 2.309(f)(1)(vii), the Commission would designate separate 
procedures for resolving the claim.
    For motions for leave to file amended contentions, a Commission 
ruling may not be necessary to lend predictability to the hearing 
process because the Commission will have provided direction on the 
admissibility of the relevant issues when it ruled on the original 
contention. Thus, the Commission will retain the option of delegating 
rulings on amended contentions to an ASLB or a single legal judge 
(assisted as appropriate by technical advisors). If the Commission 
rules on the admissibility of the amended contention, the Commission 
may revise the existing hearing schedule as appropriate. If the 
Commission delegates a contention admissibility ruling and the 
presiding officer admits the amended contention, then the Commission 
will still make the adequate protection determination for interim 
operation. In addition, the Commission-imposed procedures governing the 
adjudication of the original contention will apply to the amended 
contention if admitted by the presiding officer. Furthermore, the 
deadline for an initial decision on the amended contention (which is a 
strict deadline) will remain the same as the deadline for an initial 
decision on the original contention.\22\
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    \22\ The presiding officer should strive to meet the strict 
deadline, but if unavoidable and extreme circumstances require an 
extension of the strict deadline, then the presiding officer may 
extend that deadline in accordance with the procedures set forth in 
the case-specific procedural order.
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    Because the Commission would be ruling on (or delegating a ruling 
on) all hearing requests, intervention petitions, and motions for leave 
to file new or amended contentions or claims of incompleteness that are 
filed after the original deadline, all such filings after the original 
deadline would be filed with the Commission. The Commission 
contemplates that a ruling would be issued within 30 days of the filing 
of answers.
5. SUNSI-SGI Access Order
    The SUNSI-SGI Access Order included with the notice of intended 
operation is based on the template for the SUNSI-SGI Access Order that 
is issued in other proceedings, with the following modifications:
     To expedite the proceeding, initial requests for access to 
SUNSI or SGI must be made electronically by email, unless use of email 
is impractical, in which case delivery of a paper document must be made 
by overnight mail. All other filings in the proceeding must be made 
through the E-filing system with certain exceptions described later in 
this notice.
     To expedite the proceeding, the expectation for NRC staff 
processing of documents and the filing of protective orders and non-
disclosure agreements has been reduced from 20 days after a 
determination that access should be granted to 10 days.
     As with SUNSI-SGI Access Orders issued in other 
proceedings, requests for access to SUNSI or SGI must be submitted 
within 10 days of the publication of the Federal Register notice, and 
requests submitted later than this period will not be considered absent 
a showing of good cause for the late filing, addressing why the request 
could not have been filed earlier. For the purposes of the SUNSI-SGI 
Access Order issued with the notice of intended operation, the showing 
of good cause has been defined as follows: The requestor must 
demonstrate that its request for access to SUNSI or SGI has been filed 
by the later of (a) 10 days from the date that the existence of the 
SUNSI or SGI document becomes public information, or (b) 10 days from 
the availability of new information giving rise to the need for the 
SUNSI or SGI to formulate the contention.
     Consistent with the time period described previously for 
new or amended contentions after the deadline, the SUNSI-SGI Access 
Order provides that any contentions based on the requested SUNSI or SGI 
must be filed no later than 20 days after the requestor receives access 
to that information, except that such contentions may be filed with the 
initial hearing request if more than 20 days remain between receiving 
access to the information and the deadline for the hearing request.
     The NRC has reduced the time period for challenges to NRC 
staff determinations on access to SGI (and responses to such 
challenges) to expedite the proceeding and to be consistent with the 
time period for interlocutory appeals on access to SUNSI and SGI.
     Challenges to NRC staff determinations on SUNSI-SGI access 
under the SUNSI-SGI Access Order are to be filed with the Chief 
Administrative Judge, who will assign a single legal judge (assisted as 
appropriate by technical advisors) to rule on the challenge. The NRC 
has decided that a single legal judge should preside over such 
challenges because an administrative judge is particularly suited to 
expeditiously resolving questions of this kind, and a single legal 
judge may be able to issue a decision on a more expedited basis. If the 
challenge relates to an adverse determination by the NRC's Office of 
Administration on trustworthiness and reliability for access to SGI, 
then consistent with 10 CFR 2.336(f)(1)(iv), neither the single legal 
judge chosen to rule on such challenges nor any technical advisors 
supporting a ruling on the challenge can serve as the presiding officer 
for the proceeding.
     In cases where there is a dispute over access to SUNSI or 
SGI that was resolved by a presiding officer, the

[[Page 43286]]

presiding officer for the issuance of protective orders and other 
related matters will be the same as the presiding officer that heard 
the dispute over access. In cases where there is no access dispute but 
a presiding officer is needed for protective orders or other related 
matters, the Chief Administrative Judge will choose a presiding officer 
for such matters.
6. Filing of Documents and Time Computation
    To support the expedited nature of this proceeding, the provisions 
in 10 CFR 2.302 and 10 CFR 2.305 for the filing and service of 
documents are being modified such that, for requests to file documents 
other than through the E-Filing system, first-class mail will not be 
one of the allowed alternative filing methods. The possible 
alternatives will be limited to transmission either by fax, email, or 
overnight mail to ensure expedited delivery. Use of overnight mail will 
only be allowed if fax or email is impractical. In addition, for 
documents that are too large for the E-Filing system but could be filed 
through the E-Filing system if separated into smaller files, the filer 
must segment the document and file the segments separately. In a 
related modification, the time computation provisions in 10 CFR 
2.306(b)(1) through 2.306(b)(4), which allow additional time for 
responses to filings made by mail delivery, do not apply. Because 
overnight delivery will result in only minimal delay, it is not 
necessary to extend the time for a response.
7. Motions
    To accommodate the expedited timeline for the hearing, the time 
period for filing and responding to motions must be shortened from the 
time periods set forth in 10 CFR part 2, subpart C. Therefore, all 
motions, except for motions for leave to file new or amended 
contentions or claims of incompleteness filed after the deadline, shall 
be filed within 7 days after the occurrence or circumstance from which 
the motion arises, and answers to motions shall be filed within 7 days 
of the motion.
    Motions for extension of time will be allowed, but good cause must 
be shown for the requested extension of time based on an event 
occurring before the deadline. To meet the statutory mandate for the 
timely completion of the hearing, deadlines must be adhered to strictly 
and only exceptional circumstances should give rise to delay. 
Therefore, in determining whether there is good cause for an extension, 
the factors in 10 CFR 2.334 will be considered, but ``good cause'' will 
be interpreted strictly, and a showing of ``unavoidable and extreme 
circumstances'' will be required for any extension, no matter how 
minor.
    Motions for extension of time shall be filed as soon as possible 
but no later than 3 days before the deadline, with one limited 
exception. If the petitioner is unable to file an extension request by 
3 days before the deadline, then the petitioner must (1) file its 
request as soon as possible thereafter, (2) demonstrate that 
unavoidable and extreme circumstances prevented the petitioner from 
filing its extension request by 3 days before the deadline, and (3) 
demonstrate that the petitioner filed its extension request as soon as 
possible thereafter.\23\
---------------------------------------------------------------------------

    \23\ Consistent with practice under 10 CFR 2.307, a motion for 
extension of time might be filed shortly after a deadline has passed 
(e.g., an unanticipated event on the filing deadline prevented the 
participant from filing). See ``Amendments to Adjudicatory Process 
Rules and Related Requirements'' (77 FR 46562, 46571; August 3, 
2012).
---------------------------------------------------------------------------

    Motions for reconsideration will only be entertained for a 
presiding officer's initial decision and Commission decisions on appeal 
of a presiding officer's initial decision. These are the most important 
decisions in the proceeding, and reconsideration of these decisions 
does not prevent them from taking effect. Reconsideration is not 
permitted in other circumstances because (1) reconsideration is 
unlikely to be necessary for other decisions, which are interlocutory 
in nature, (2) the resources necessary to prepare, review, and rule on 
requests for reconsideration take time away from other hearing-related 
tasks, (3) interlocutory rulings that have a material effect on the 
ultimate outcome of the proceeding can be appealed after the hearing 
decision is issued, and (4) the appellate process will not cause undue 
delay given the expedited nature of the proceeding.
    Nonetheless, the NRC acknowledges that given the first-of-a-kind 
nature of ITAAC hearings (and their tight timelines), there may be a 
need to correct misunderstandings or errors in a presiding officer's 
decision. To the extent that a presiding officer's decision (here, the 
ASLB or a single legal judge) is based on a simple misunderstanding or 
a clear and material error (e.g., a conflict between the scheduling 
order and the Commission's order imposing procedures for the hearing), 
the parties could attempt to more informally raise the issue with the 
presiding officer by requesting a conference call on the matter.\24\ 
Such requests should be made by email to the presiding officer's law 
clerk with the other parties' representatives copied on it. If the 
presiding officer decides that no conference call is necessary, then 
the parties' and the presiding officer's resources will not have been 
expended. If a conference call is held, the resource expenditure should 
be minimal and any error or misunderstanding more quickly rectified 
than through a formal request for reconsideration.
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    \24\ This possibility is not available in cases where the 
Commission, itself, is serving as the presiding officer because such 
an informal process would be impractical since Commission action is 
subject to formal processes (some of which are required by law). In 
addition, the potential need for such an informal process is less 
likely to arise in the portions of the ITAAC hearing process over 
which the Commission will preside.
---------------------------------------------------------------------------

    Finally, to prevent motions for clarification from becoming de 
facto motions for reconsideration, only motions for clarification based 
on an ambiguity in a presiding officer order will be permitted. In 
addition, a motion for clarification must explain the basis for the 
perceived ambiguity and may offer possible interpretations of the 
purportedly ambiguous language.
8. Notifications Regarding Relevant New Developments in the Proceeding
    Section 189a.(1)(B)(i)-(ii) of the AEA and 10 CFR 2.309(f)(1)(vii) 
and 10 CFR 2.340(c) require contentions to be submitted, and permit a 
hearing to go forward, on the predictive question of whether one or 
more of the acceptance criteria in the combined license will not be 
met. Additionally, a licensee might choose to re-perform an inspection, 
test, or analysis as part of ITAAC maintenance or to dispute a 
contention,\25\ or events subsequent to the performance of an ITAAC 
might be relevant to the continued validity of the earlier ITAAC 
performance. As a consequence, it is possible for the factual predicate 
of a contention to change over the course of the proceeding, thus 
affecting the contention or the hearing schedule. Given this and as 
directed by the Commission in USEC Inc. (American Centrifuge Plant), 
CLI-06-10, 63 NRC 451, 470 (2006), the parties have a continuing 
obligation to notify the other parties and the presiding officer of 
relevant new developments in the proceeding. In addition, to ensure 
that the parties and the Commission stay fully informed of the status 
of

[[Page 43287]]

challenged ITAAC as a hearing request is being considered, any answers 
to the hearing request from the NRC staff and the licensee must discuss 
any changes in the status of challenged ITAAC.
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    \25\ The legislative history of the EPAct suggests that re-
performing the ITAAC would be a simpler way to resolve disputes 
involving competing eyewitness testimony. 138 Cong. Rec. S1143-44 
(February 6, 1992) (statement of Sen. Johnston). In addition, ITAAC 
re-performance might occur as part of the licensee's maintenance of 
the ITAAC, and might also result in an ITAAC post-closure 
notification.
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    After answers are filed, the parties must notify the Commission and 
the other parties in a timely fashion as to any changes in the status 
of a challenged ITAAC up to the time that the presiding officer rules 
on the admissibility of the contention. Such a notification includes 
information related to re-performance of an ITAAC that might bear on 
the proposed contentions. In addition, after answers are filed, the 
licensee must notify the Commission and the parties of the submission 
of any ITAAC closure notification or ITAAC post-closure notification 
for a challenged ITAAC. This notice must be filed within one day of the 
ITAAC closure notification or ITAAC post-closure notification being 
submitted to the NRC.
9. Stays
    The stay provisions of 10 CFR 2.342 and 10 CFR 2.1213 apply to this 
proceeding, but in the interests of expediting the proceeding, (1) the 
deadline in 10 CFR 2.342 for filing either a stay application or an 
answer to a stay application is shortened to 7 days, and (2) the 
deadline in 10 CFR 2.1213(c) to file an answer supporting or opposing a 
stay application is likewise reduced to 7 days. In addition, as 
explained previously, a request to stay the effectiveness of the 
Commission's decision on interim operation will not be entertained.
10. Interlocutory Review
    The NRC has limited interlocutory review to decisions on access to 
SUNSI or SGI because interlocutory review of other decisions would be 
unnecessary and unproductive given the expedited nature of the 
proceeding. Because of the abbreviated ITAAC hearing schedule, appeal 
rights will quickly accrue, and before the initial decision, the 
parties' resources should be dedicated to completing the hearing. The 
NRC is allowing interlocutory review for decisions granting access to 
SUNSI or SGI because a post-hearing appeal opportunity will not cure 
the harm from a pre-hearing grant of access to sensitive information. 
The NRC is also providing a right to interlocutory review for decisions 
denying access to SUNSI or SGI because the NRC believes that those 
seeking access to SUNSI or SGI should have a reciprocal appeal 
opportunity and because it is important to quickly resolve disputes 
over access to such information given the potential effect that an 
erroneous denial of access might have on the schedule of the 
proceeding. However, the Commission does not expect appeals seeking to 
overturn a denial of access to SUNSI or SGI to delay any aspect of the 
proceeding unless the requestor can show irreparable harm.
    The interlocutory appeal provision in the procedures is modeled 
after the relevant provisions of 10 CFR 2.311, but to expedite the 
proceeding and given the limited nature of the disputes subject to 
interlocutory appeal, such an appeal must be filed within 7 days of the 
order being appealed, and any briefs in opposition will be due within 7 
days of the appeal. A presiding officer order denying a request for 
access to SUNSI or SGI may be appealed by the requestor only on the 
question of whether the request should have been granted in whole or in 
part. A presiding officer order granting a request for access to SUNSI 
or SGI may be appealed only on the question of whether the request 
should have been denied in whole or in part. However, such a question 
with respect to SGI may be appealed only by the NRC staff, and such a 
question with respect to SUNSI may be appealed only by the NRC staff or 
by a party whose interest independent of the proceeding would be harmed 
by the release of the information.
11. Licensee Hearing Requests
    In accordance with 10 CFR 2.105(d)(1), a notice of proposed action 
must state that, within the time period provided under 10 CFR 2.309(b), 
the applicant may file a request for a hearing. While this provision 
literally refers to applicants as opposed to licensees, it makes sense 
and accords with the spirit of the rule to provide an equivalent 
opportunity to licensees seeking to operate their plants, which have 
legal rights associated with possessing a license that must be 
protected. The situation giving rise to such a hearing request would be 
a dispute between the licensee and the NRC staff on whether the ITAAC 
have been successfully completed. The hearing request must be filed 
within 60 days of publication of the notice of intended operation, 
except that the licensee may file a hearing request after this deadline 
if it is filed within 20 days of formal correspondence from the NRC 
staff communicating its position that a particular ITAAC has not been 
successfully completed. If a hearing request is filed by the licensee, 
the NRC staff may file an answer within 10 days of service of the 
hearing request.
    With respect to the contents of a licensee request for hearing, the 
prima facie showing requirement would not apply because the licensee 
would be asserting that the acceptance criteria are met rather than 
asserting that the acceptance criteria have not been, or will not be, 
met. Licensees requesting a hearing would be challenging an NRC staff 
determination that the ITAAC has not been successfully completed; this 
NRC staff determination would be analogous to a prima facie showing 
that the acceptance criteria have not been met. Given this, a licensee 
requesting a hearing is required to specifically identify the ITAAC 
whose successful completion is being disputed by the NRC staff and to 
identify the specific issues that are being disputed. However, a 
hearing request by the licensee need not address the contention 
admissibility standards in 10 CFR 2.309(f). Also, a licensee's hearing 
request need not address 10 CFR 2.309(d) because the licensee's 
interest in the proceeding is established by the fact that its 
authority to operate the facility depends on its compliance with the 
ITAAC.
    The NRC does not believe that separate hearing procedures need to 
be developed for a hearing requested by a licensee. Such hearing 
requests should be highly unusual because disputes between the NRC 
staff and the licensee are normally resolved through other mechanisms. 
Also, many of the hearing procedures described in this notice could 
likely be adapted, with little change, to serve the purposes of a 
hearing requested by a licensee.

B. Procedures for Hearings Involving Testimony

    With the exception of procedures for licensee hearing requests, the 
procedures described previously for inclusion with the notice of 
intended operation will also be included in the order setting forth the 
procedures for hearings involving testimony, with the following 
modifications:
     In the procedures issued with the notice of intended 
operation, additional briefing on licensee-proposed mitigation measures 
would occur only after a decision on the hearing request. However, 
because of the greater need for an expedited decision on interim 
operation for contentions submitted after the hearing request is 
granted, a different process is necessary. Therefore, if the licensee's 
answer addresses proposed mitigation measures to assure adequate 
protection during interim operation, the NRC staff and the proponent of 
the hearing request, intervention petition, or motion for leave to file 
a new or amended contention filed after the original deadline may, 
within 20 days of the

[[Page 43288]]

licensee's answer, file a response that addresses only the effect these 
proposed mitigation measures would have on adequate protection during 
the period of interim operation.
     The provisions described earlier for motions for 
reconsideration under 10 CFR 2.323(e) also apply to petitions for 
reconsideration under 10 CFR 2.345.
     Additional procedures are imposed regarding notifications 
of relevant new developments related to admitted contentions. 
Specifically, if the licensee notifies the presiding officer and the 
parties of an ITAAC closure notification, an ITAAC post-closure 
notification, or the re-performance of an ITAAC related to an admitted 
contention, then the notice shall state the effect that the notice has 
on the proceeding, including the effect of the notice on the 
evidentiary record, and whether the notice renders moot, or otherwise 
resolves, the admitted contention. This notice requirement applies as 
long as there is a contested proceeding in existence on the relevant 
ITAAC (including any period in which an appeal of an initial decision 
may be filed or during the consideration of an appeal if an appeal is 
filed). Within 7 days of the licensee's notice, the other parties shall 
file an answer providing their views on the effect that the licensee's 
notice has on the proceeding, including the effect of the notice on the 
evidentiary record, and whether the notice renders moot, or otherwise 
resolves, the admitted contention. However, the petitioner is not 
required in this 7-day time frame to address whether it intends to file 
a new or amended contention. In the interest of timeliness, the 
presiding officer may, in its discretion, take action to determine the 
notice's effect on the proceeding (e.g., hold a prehearing conference, 
set an alternate briefing schedule) before the 7-day deadline for 
answers.
    Additional significant procedures that specifically relate to 
hearings involving witness testimony are as follows.
1. Schedule and Format for Hearings Involving Witness Testimony
    As discussed earlier, the NRC is using a subpart L-type approach 
for evidentiary hearings that features pre-filed written testimony, an 
oral hearing, and questioning by the presiding officer rather than by 
counsel for the parties.\26\ Two alternative hearing tracks have been 
developed, Track 1 and Track 2, with the only difference between these 
two tracks being whether both pre-filed initial and rebuttal testimony 
are permitted (Track 1) or whether only pre-filed initial testimony is 
permitted (Track 2). While Track 2 does not allow written rebuttal, it 
does allow a form of oral rebuttal in that the parties can propose 
questions to be asked of their own witnesses to respond to the other 
parties' filings.
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    \26\ However, as explained later, there is an opportunity to 
file motions to conduct cross-examination.
---------------------------------------------------------------------------

    After considering comments on which hearing track to use and as 
discussed in Section 5.D of the Comment Summary Report, the NRC has 
made the Track 1 procedures the default evidentiary hearing track. 
Written rebuttal should ensure that the parties have a complete 
opportunity to respond to new, unexpected issues raised in the other 
parties' initial testimony. Also, written rebuttal should clarify the 
evidentiary record and clarify the contested issues prior to the oral 
hearing, which ought to make the oral hearing shorter and more 
efficient. Further, written rebuttal should help the presiding officer 
reach its decision more expeditiously by increasing the likelihood that 
the topics raised in initial testimony will have been fully addressed 
before the hearing. Given these advantages, written rebuttal will be 
included in most cases. Setting Track 1 as the default hearing track 
will simplify the process for designating hearing procedures in each 
proceeding.
    The Track 1 schedule should generally accommodate a timely hearing 
decision for contentions submitted with the initial hearing request. In 
cases where the Track 1 schedule might not accommodate issuance of the 
initial decision by scheduled fuel load (e.g., where new contentions 
after the deadline are admitted), the NRC believes that the benefits of 
written rebuttal will nevertheless generally outweigh the minor 
potential time savings from its elimination. Also, even though Track 2 
is nominally shorter than Track 1, the time saved from eliminating 
written rebuttal might ultimately be lost during the hearing and post-
hearing phases if the presiding officer has an incomplete understanding 
of the parties' positions prior to the oral hearing. In any event, the 
Commission retains the authority to eliminate written rebuttal in 
individual proceedings. For example, the Commission might eliminate 
written rebuttal if the contested issues are narrow and simple and the 
parties' positions in the hearing request and answers are sufficiently 
established to allow a full response in the parties' initial testimony 
and statements of position. For this reason, the Track 2 procedures are 
being retained as an option in the final procedures.
    To ensure the completion of the hearing by the statutorily-mandated 
goal, the Commission will establish a ``strict deadline'' for the 
issuance of the initial decision that can only be extended upon a 
showing that ``unavoidable and extreme circumstances'' necessitate a 
delay. The presiding officer has the authority to extend the strict 
deadline after notifying the Commission of the rationale for its 
decision, which the presiding officer is expected to make at the 
earliest practicable opportunity after determining that an extension is 
necessary. In addition to this strict deadline, the schedule includes 
two other types of target dates: Default deadlines and milestones. 
``Default deadlines'' are requirements to which the parties must 
conform, but they may be modified by the presiding officer for good 
cause. Default deadlines are used for the completion of certain tasks 
soon after the decision on the hearing request that the parties must 
begin working toward as soon as the hearing request is granted. Target 
dates that have not been designated as a ``strict deadline'' or a 
``default deadline'' are ``milestones,'' which are not requirements, 
but the presiding officer is expected to adhere to milestones to the 
best of its ability in an effort to complete the hearing in a timely 
fashion. The presiding officer may revise the milestones in its 
discretion, with input from the parties, keeping in mind the strict 
deadline for the overall proceeding.
    The Track 1 and Track 2 schedules are reproduced in Table 1.

[[Page 43289]]



                                     Table 1--Track 1 and Track 2 Schedules
----------------------------------------------------------------------------------------------------------------
                                         Target date              Target date
              Event              ---------------------------------------------------       Target date type
                                    Track 1 (the default)           Track 2
----------------------------------------------------------------------------------------------------------------
Prehearing Conference...........  Within 7 days of the      Within 7 days of the     Milestone.
                                   grant of the hearing      grant of the hearing
                                   request.                  request.
Scheduling Order................  Within 3 days of the      Within 3 days of the     Milestone.
                                   prehearing conference.    prehearing conference.
Document Disclosures;             15 days after the grant   15 days after the grant  Default Deadline.
 Identification of Witnesses;      of the hearing request.   of the hearing request.
 and NRC Staff Informs the
 Presiding Officer and Parties
 of Whether the Staff Will
 Participate as a Party.
Pre-filed Initial Testimony.....  30 (+/-5) days \27\       30 (+/-5) days after     Milestone.
                                   after the grant of the    the grant of the
                                   hearing request.          hearing request.
Pre-filed Rebuttal Testimony....  14 days after initial     No rebuttal............  Milestone.
                                   testimony.
Proposed Questions; Motions for   7 days after rebuttal     7 days after initial     Milestone.
 Cross-Examination/Cross-          testimony.                testimony.
 Examination Plans.
Answers to Motions for Cross-     5 days after the motion   5 days after the motion  Milestone.
 Examination.                      for cross-examination     for cross-examination
                                   OR oral answer to         OR oral answer to
                                   motion presented just     motion presented just
                                   prior to the beginning    prior to the beginning
                                   of the hearing.           of the hearing.
Oral Hearing....................  15 days after rebuttal    15 days after initial    Milestone.
                                   testimony.                testimony.
Joint Transcript Corrections....  7 days after the hearing  7 days after the         Milestone.
                                                             hearing.
Findings (if needed)............  15 days after the         15 days after the        Milestone.
                                   hearing or such other     hearing or such other
                                   time as the presiding     time as the presiding
                                   officer directs.          officer directs.
Initial Decision................  30 days after the         30 days after the        Strict Deadline.
                                   hearing.                  hearing.
----------------------------------------------------------------------------------------------------------------

    The Track 1 schedule takes 89 (+/-5) days (including one day for 
the oral hearing), and the Track 2 schedule takes 75 (+/-5) days 
(including one day for the oral hearing). The Commission may add or 
subtract up to 5 days for initial testimony depending on the number and 
complexity of contested issues. As stated earlier, answers to a hearing 
request would be due 125 days before scheduled fuel load if the notice 
of intended operation is published 210 days before scheduled fuel load, 
and the milestone for rulings on hearing requests is 30 days from the 
filing of answers. Thus, using the default hearing track (Track 1) for 
a contention admitted with a hearing request filed by the original 
deadline, an initial decision can ordinarily be expected 6 (+/-5) days 
before scheduled fuel load. The Commission retains the flexibility to 
modify these dates, as well as the other procedures set forth in this 
notice, on a case-specific basis.
---------------------------------------------------------------------------

    \27\ The Commission may add or subtract up to 5 days depending 
on the number and complexity of contested issues.
---------------------------------------------------------------------------

    Both the Track 1 and Track 2 hearing schedules are aggressive, but 
this is necessary to satisfy the statutorily-mandated goal for timely 
completion of the hearing. The NRC believes that these schedules are 
feasible and will allow the presiding officer and the parties a fair 
opportunity to develop a sound record for decision. However, all 
parties must schedule their resources such that they will be able to 
provide a high, sustained effort throughout the hearing process. The 
parties are obligated to ensure that their representatives and 
witnesses are available during this period to perform all of their 
hearing-related tasks on time. The competing obligations of the 
participants' representatives or witnesses will not be considered good 
cause for any delays in the schedule.
    The specific provisions governing the evidentiary hearing tasks are 
set forth in detail in Final Template B. Except for the mandatory 
disclosure requirements, these provisions are drawn from 10 CFR part 2, 
subpart L, subject to the schedule set forth previously and the 
following significant modifications or additional features:
     The prehearing conference is expected to occur, and the 
scheduling order is expected to be issued, soon after the hearing 
request is granted. To meet this schedule, the NRC envisions that those 
who might potentially serve as the presiding officer will be designated 
well before the decision on the hearing request so that these persons 
would be familiar with the ITAAC hearing procedures, the record, and 
the disputed issues and would be able to immediately commence work on 
evidentiary hearing activities once the hearing request is granted.
     Other than a joint motion to dismiss supported by all of 
the parties, motions to dismiss and motions for summary disposition are 
not permitted. The time frame for the hearing is already limited, and 
the resources necessary to prepare, review, and rule on a motion to 
dismiss or motion for summary disposition would take time away from 
preparing for the hearing and likely would not outweigh the potential 
for error should it later be decided on appeal that a hearing was 
warranted.
     Written statements of position may be filed in the form of 
proposed findings of fact and conclusions of law. Doing so would allow 
the parties to draft their post-hearing findings of fact and 
conclusions of law by updating their pre-hearing filings. Also, if the 
parties choose this option, the presiding officer should consider 
whether it might be appropriate to dispense with the filing of written 
findings of fact and conclusions of law after the hearing.
     Written motions in limine or motions to strike \28\ will 
not be permitted because such motions would lead to delay without 
compensating benefit. The parties' evidentiary submissions are expected 
to be narrowly focused on the discrete technical issues that would be 
the subject of the admitted contentions, and the presiding officer is 
capable of judging the relevance and persuasiveness of the arguments, 
testimony, and evidence without excluding them from the record. In 
addition, the parties' rights will be protected because they will have

[[Page 43290]]

an opportunity to address the relevance or admissibility of arguments, 
testimony, or evidence in their pre- and post-hearing filings, or at 
the hearing.
---------------------------------------------------------------------------

    \28\ Collectively, written motions in limine and motions to 
strike are written motions to exclude another party's arguments, 
testimony, or evidence.
---------------------------------------------------------------------------

     Consistent with 10 CFR 2.1204(b)(3), cross-examination by 
the parties shall be allowed only if it is necessary to ensure the 
development of an adequate record for decision. Cross-examination 
directed at persons providing eyewitness testimony will be allowed upon 
request. Similarly, in the exercise of its discretion, the presiding 
officer need not ask all (or any) questions that the parties request 
the presiding officer to consider propounding to the witnesses.
     Written answers to motions for cross-examination would be 
due 5 days after the filing of the motion, or, alternatively, if travel 
arrangements for the hearing interfere with the ability of the parties 
and the presiding officer to file or receive documents, an answer may 
be delivered orally at the hearing location just prior to the start of 
the hearing.\29\ At the prehearing conference, the presiding officer 
and the parties would address whether answers to motions for cross-
examination will be in written form or be delivered orally.
---------------------------------------------------------------------------

    \29\ Because cross-examination plans are filed non-publicly, 
answers to cross-examination motions would only address the public 
motion, which would likely include less detail. This justifies the 
shorter deadline for answers and the reasonableness of having 
answers be delivered orally.
---------------------------------------------------------------------------

     Proposed findings of fact and conclusions of law will be 
allowed unless the presiding officer dispenses with them for some or 
all of the hearing issues. Proposed findings of fact and conclusions 
may aid the presiding officer by summarizing the parties' positions on 
the issues at hearing and citing to the hearing record, but if proposed 
findings of fact and conclusions of law are unnecessary for some (or 
all) issues, the presiding officer may dispense with proposed findings 
of fact and conclusions of law on these issues to avoid delay.
2. Mandatory Disclosures/Role of the NRC Staff
    Discovery should be limited to the mandatory disclosures required 
by 10 CFR 2.336(a), with certain modifications. The required 
disclosures, pre-filed testimony and evidence, and the opportunity to 
submit proposed questions should provide a sufficient foundation for 
the parties' positions and the presiding officer's ruling, as they do 
in other informal NRC adjudications. Any information that might be 
gained by conducting formal discovery under 10 CFR part 2, subpart G, 
likely would not justify the time and resources necessary to gain that 
information, particularly considering the limited time frame in which 
an ITAAC hearing must be conducted. Accordingly, depositions, 
interrogatories, and other forms of discovery provided under 10 CFR 
part 2, subpart G, will not be permitted. Modifications to the 
mandatory disclosure requirements of 10 CFR 2.336 are as follows:
     For the sake of simplicity, NRC staff disclosures will be 
based on the provisions of 10 CFR 2.336(a), as modified for ITAAC 
hearings, rather than on 10 CFR 2.336(b). The categories of documents 
covered by 10 CFR 2.336(a) and 10 CFR 2.336(b) are likely to be the 
same in the ITAAC hearing context, and it is reasonable in an ITAAC 
hearing to impose a witness identification requirement on the NRC staff 
with its initial disclosures since initial testimony is due soon after 
the initial disclosures.
     The witness identification requirement of 10 CFR 2.336(a) 
is clarified to explicitly include potential witnesses whose knowledge 
provides support for a party's claims or positions in addition to 
opinion witnesses.
     All parties will provide disclosures of documents relevant 
to the admitted contentions and the identification of fact and expert 
witnesses within 15 days of the granting of the hearing request. This 
short deadline is necessary to support the expedited ITAAC hearing 
schedule. In addition, it is expected that the parties will be able to 
produce document disclosures and identify witnesses within 15 days of 
the granting of the hearing request because of the focused nature of an 
ITAAC hearing and because the parties will have already compiled much 
of the information subject to disclosure in order to address the prima 
facie showing requirement for ITAAC hearing requests.
     Parties may agree to exclude certain classes of documents 
(such as drafts) from the mandatory disclosures. The NRC has no 
objection to such exclusions if agreed to by the parties, and such 
exclusions should be discussed at the prehearing conference.
     As a default matter, a party is not required to include a 
document in a privilege log if (1) the document satisfies the 
withholding criteria of 10 CFR 2.390(a), and (2) the document is not 
being withheld on the basis that it is SGI, security-related SUNSI, or 
proprietary information. SGI, security-related SUNSI, and proprietary 
information might have some bearing on contested issues, and access 
might be appropriate in some circumstances pursuant to a protective 
order. However, other types of privileged information are much less 
likely to have a bearing on contested issues, particularly given the 
narrow technical nature of ITAAC. Nonetheless, the presiding officer 
may change the scope of the privilege log requirement for a case-
specific reason, and the parties may jointly agree to change the scope 
of the privilege log requirement.
     Privilege logs will be viewed as sufficient if they 
specifically identify each document being withheld (including the date, 
title, and a brief description of the document) and the basis for 
withholding (e.g., ``contains SGI'').
     Disclosure updates will be due every 14 days (instead of 
monthly) to support the expedited ITAAC hearing schedule.
     The subpart L provisions for NRC staff participation as a 
party are retained, but the procedures in this notice also provide that 
the Commission may direct the NRC staff to participate as a party in 
the Commission order imposing hearing procedures.
    In addition to the disclosure provisions of 10 CFR 2.336(a), the 
provisions of the SUNSI-SGI Access Order will apply to all participants 
(including parties) \30\ subject to the following modifications/
clarifications:
---------------------------------------------------------------------------

    \30\ In other proceedings, the provisions of the SUNSI-SGI 
Access Order apply to petitioners not yet admitted as parties, as 
explained in South Texas Project Nuclear Operating Co. (South Texas 
Project, Units 3 and 4), CLI-10-24, 72 NRC 451, 461-62 (2010). 
However, an ITAAC hearing differs from most NRC proceedings because 
there will be no hearing file. The hearing file provides information 
that may be used to support new contentions. Because the disclosures 
process in an ITAAC hearing does not allow parties to access SUNSI 
or SGI for the purpose of formulating contentions unrelated to 
admitted contentions, it makes sense to apply the provisions of the 
SUNSI-SGI Access Order to parties.
---------------------------------------------------------------------------

     For a party seeking access to SUNSI or SGI relevant to the 
admitted contentions, the 10 CFR 2.336(a) disclosures process will be 
used in lieu of the SUNSI-SGI Access Order. As part of the disclosures 
process, a party seeking SUNSI or SGI related to an admitted contention 
would first seek access from the party possessing the SUNSI or SGI. Any 
disputes among the parties over access to SUNSI would be resolved by 
the presiding officer, and any disputes over access to SGI would be 
resolved in accordance with 10 CFR 2.336(f), except that the time 
periods under 10 CFR 2.336(f) governing challenges to NRC staff 
determinations on access to SGI have been reduced as explained earlier 
in this notice.
     In cases where there is a dispute over access to SUNSI or 
SGI, the presiding officer ruling on the dispute will also be the 
presiding officer

[[Page 43291]]

responsible for the issuance of protective orders and other related 
matters. In cases where there is no access dispute but a presiding 
officer is needed for protective orders or other related matters, (1) 
the presiding officer for the admitted contention will be the presiding 
officer for such matters when the SUNSI or SGI is being provided as 
part of mandatory disclosures, and (2) the Chief Administrative Judge 
will choose a presiding officer for such matters when the SUNSI or SGI 
is being provided under the SUNSI-SGI Access Order.
     The timeliness standard for requests for access is the 
later of (a) 10 days from the date that the existence of the SUNSI or 
SGI document becomes public information, or (b) 10 days from the 
availability of new information giving rise to the need for the SUNSI 
or SGI to formulate the contention.
     Any contentions based on SUNSI or SGI must be filed within 
20 days of access to the SUNSI or SGI.
    As for the 10 CFR 2.1203 hearing file that the NRC staff is 
obligated to produce in subpart L proceedings, the NRC is not applying 
this requirement to ITAAC hearings because the more narrowly defined 
NRC disclosure provisions discussed previously are sufficient to 
disclose all relevant documents. The scope of an ITAAC hearing is 
narrowly focused on whether the acceptance criteria in the pre-approved 
ITAAC are met, unlike other NRC adjudications that involve the entire 
combined license application. And unlike other NRC adjudicatory 
proceedings that may involve numerous requests for additional 
information, responses to requests for additional information, and 
revisions to the application, an ITAAC hearing will focus on licensee 
ITAAC notifications and related NRC staff review documents that will be 
referenced in a centralized location on the NRC Web site. Consequently, 
it is unlikely in an ITAAC hearing that a member of the public would 
obtain useful documents through the hearing file required by 10 CFR 
2.1203 that it would not obtain through other avenues.
3. Certified Questions/Referred Rulings
    The NRC recognizes that there may be unusual cases that merit a 
certified question or referred ruling from the presiding officer, 
notwithstanding the potential for delay. Therefore, the provisions 
regarding certified questions or referred rulings in 10 CFR 2.323(f) 
and 10 CFR 2.341(f)(1) apply to ITAAC hearings. However, the proceeding 
would not be stayed by the presiding officer's referred ruling or 
certified question. Where practicable, the presiding officer should 
first rule on the matter in question and then seek Commission input in 
the form of a referred ruling to minimize delays in the proceeding 
during the pendency of the Commission's review.

C. Procedures for Hearings Not Involving Testimony (Legal Contentions)

    Admitted contentions that solely involve legal issues will be 
resolved based on written legal briefs. The briefing schedule will be 
determined by the Commission on a case-by-case basis. The procedures 
retain the Commission's discretion to serve as the presiding officer or 
to delegate that function. However, the Commission has concluded, as a 
general matter that a single legal judge (assisted as appropriate by 
technical advisors) should be the presiding officer for hearings on 
legal contentions when the Commission chooses not to be the presiding 
officer. When only legal issues are involved, the considerations in 
favor of employing a panel are less weighty given that most ASLBs in 
other proceedings include only one legal judge, with the other two 
judges being technical experts on factual matters. Also, a single judge 
may be able to reach and issue a decision more quickly than a panel of 
judges.
    The Commission will impose a strict deadline for a decision on the 
briefs by the presiding officer. If a single legal judge is the 
presiding officer, then the presiding officer will have the discretion 
to hold a prehearing conference to discuss the briefing schedule and to 
discuss whether oral argument is needed, but a decision to hold oral 
argument will not change the strict deadline for the presiding 
officer's decision. The additional hearing procedures for legal 
contentions will be taken from Template B, with the exception of those 
that involve testimony (or associated filings) and those that involve 
discovery. Also, if the Commission designates itself as the presiding 
officer for resolving the legal contention, then the procedures taken 
from Template B will be revised to reflect this determination.

D. Procedures for Resolving Claims of Incompleteness

    If the Commission determines that the petitioner has submitted a 
valid claim of incompleteness, then it will issue an order that will 
require the licensee to provide the additional information within 10 
days (or such other time as specified by the Commission) and provide a 
process for the petitioner to file a contention based on the additional 
information. This contention and any answers to it will be subject to 
the requirements for motions for leave to file new or amended 
contentions after the original deadline that are described earlier. If 
the petitioner files an admissible contention thereafter, and all other 
hearing request requirements have been met, then the hearing request 
will be granted and an order imposing procedures for resolving the 
admitted contention will be issued. If the petitioner submits another 
claim of incompleteness notwithstanding the additional information 
provided by the licensee, it shall file its request with the 
Commission. Any additional claims of incompleteness will be subject to 
the timeliness requirements for motions for leave to file claims of 
incompleteness after the original deadline that are described 
previously. Finally, the Commission order imposing procedures for 
resolving claims of incompleteness will include additional procedures, 
primarily from the Additional Procedures Order in Template A, with 
changes to reflect the procedural posture for a valid claim of 
incompleteness.

VII. Availability of Documents

    The NRC is making the documents identified in the following table 
available to interested persons through the following methods as 
indicated.

------------------------------------------------------------------------
                 Document                       ADAMS  Accession No.
------------------------------------------------------------------------
Public comment from Ellen C. Ginsberg on    ML15149A102
 behalf of the Nuclear Energy Institute
 (May 27, 2015).
Final Template A ``Notice of Intended       ML16167A469
 Operation and Associated Orders''.
Final Template B ``Procedures for Hearings  ML16167A471
 Involving Testimony''.
Final Template C ``Procedures for Hearings  ML16167A475
 Not Involving Testimony''.
Final Template D ``Procedures for           ML16167A479
 Resolving Claims of Incompleteness''.

[[Page 43292]]

 
Comment Summary Report--Procedures for      ML16167A464
 Conducting Hearings on Whether Acceptance
 Criteria in Combined Licenses Are Met
 (June 2016).
Public comment from Ellen C. Ginsberg on    ML14190A012
 behalf of the Nuclear Energy Institute
 (July 2, 2014).
Public comment from April R. Rice on        ML14190A013
 behalf of South Carolina Electric & Gas
 Company (July 2, 2014).
Public comment from Brian H. Whitley on     ML14190A011
 behalf of Southern Nuclear Operating
 Company, Inc. (July 2, 2014).
Public comment from Thomas C. Geer on       ML14190A010
 behalf of Westinghouse Electric Company
 LLC (July 1, 2014).
Public comment from William Maher on        ML14190A009
 behalf of Florida Power and Light Company
 (July 2, 2014).
Public comment from Mr. Barton Z. Cowan     ML14195A275
 (July 2, 2014).
Summary of May 21, 2014 public meeting      ML14153A433
 (June 2, 2014).
Transcript of May 21, 2014 public meeting.  ML14147A200
Summary of September 22, 2014 public        ML14276A154
 meeting (October 2, 2014).
Transcript of September 22, 2014 public     ML14274A235
 meeting.
Public comment from Mr. Marvin Lewis        ML14272A454
 (September 23, 2014).
Public comment from Ellen C. Ginsburg on    ML14289A494
 behalf of the Nuclear Energy Institute
 (October 15, 2014).
Draft Template A ``Notice of Intended       ML14097A460
 Operation and Associated Orders'' (April
 10, 2014).
Draft Template B ``Procedures for Hearings  ML14097A468
 Involving Testimony'' (April 10, 2014).
Draft Template C ``Procedures for Hearings  ML14097A471
 Not Involving Testimony'' (April 10,
 2014).
Draft Template D ``Procedures for           ML14097A476
 Resolving Claims of Incompleteness''
 (April 10, 2014).
Vogtle Unit 3 Combined License, Appendix C  ML112991102
SECY-13-0033, ``Allowing Interim Operation  ML12289A928
 Under Title 10 of the Code of Federal
 Regulations Section 52.103'' (April 4,
 2013).
SRM on SECY-13-0033 (July 19, 2013).......  ML13200A115
Procedures to Allow Potential Intervenors   ML080380626
 to Gain Access to Relevant Records that
 Contain Sensitive Unclassified Non-
 Safeguards Information or Safeguards
 Information (February 29, 2008).
------------------------------------------------------------------------

    The NRC has posted documents related to this notice, including 
public comments, on the Federal rulemaking Web site at http://www.regulations.gov under Docket ID NRC-2014-0077. The Federal 
rulemaking Web site allows you to receive alerts when changes or 
additions occur in a docket folder. To subscribe: (1) Navigate to the 
docket folder (NRC-2014-0077); (2) click the ``Email Alert'' link; and 
(3) enter your email address and select how frequently you would like 
to receive emails (daily, weekly, or monthly).

VIII. Plain Language Writing

    The Plain Writing Act of 2010 (Pub. L. 111-274) requires Federal 
agencies to write documents in a clear, concise, well-organized manner 
that also follows other best practices appropriate to the subject or 
field and the intended audience. The NRC has attempted to use plain 
language in developing these general procedures, consistent with the 
Federal Plain Writing Act guidelines.

    Dated at Rockville, Maryland, this 27th day of June, 2016.

    For the Nuclear Regulatory Commission.

Rochelle C. Bavol,
Acting, Secretary of the Commission.
[FR Doc. 2016-15693 Filed 6-30-16; 8:45 am]
 BILLING CODE 7590-01-P