[Federal Register Volume 73, Number 151 (Tuesday, August 5, 2008)]
[Notices]
[Pages 45485-45490]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-17907]
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NUCLEAR REGULATORY COMMISSION
[Docket Nos. 50-454 and 50-455]
Byron Station, Unit Nos. 1 and 2; Notice of Consideration of
Issuance of Amendment to Facility Operating License, Proposed No
Significant Hazards Consideration Determination, and Opportunity for a
Hearing and Order Imposing Procedures for Access to Sensitive
Unclassified Non-Safeguards Information
The U.S. Nuclear Regulatory Commission (the Commission) is
considering issuance of an amendment to Facility Operating License Nos.
NPF-37 and NPF-66 issued to Exelon Generation Company, LLC (the
licensee) for operation of the Byron Station, Unit Nos. 1 and 2
(Byron), which is located in Ogle County, Illinois.
The proposed amendment in the licensee's application dated June 17,
2008, would revise Technical Specification (TS) 5.5.9, Steam Generator
(SG) Program, and TS 5.6.9, Steam Generator Tube Inspection Report. For
TS 5.5.9, the amendment would incorporate a one-cycle interim alternate
repair criteria (IARC) in the provisions for SG tube repair criteria
during Byron, Unit No. 2, refueling outage 14 and the subsequent
operating cycle. The IARC proposal requires full-length inspection of
the SG tubes within the tubesheet but does not require plugging tubes
if circumferential cracking observed in the region greater than 17
inches from the top of the tubesheet is less than a value sufficient to
permit the remaining circumferential ligament to transmit the limiting
axial loads. For TS 5.6.9, the amendment would revise the current
reporting requirements. The proposed changes only affect Byron, Unit
No. 2; however, they are docketed for both Byron units because the TS
are common to both units.
This amendment application includes sensitive unclassified non-
safeguards information (SUNSI, i.e., proprietary information). Before
issuance of the proposed license amendment, the Commission will have
made findings required by the Atomic Energy Act of 1954, as amended
(the Act), and the Commission's regulations.
The Commission has made a proposed determination that the amendment
request involves no significant hazards consideration. Under the
Commission's regulations in Title 10 of the CODE OF FEDERAL REGULATIONS
(10 CFR), Section 50.92, this means that operation of the facility in
accordance with the proposed amendment would not (1) involve a
significant increase in the probability or consequences of an accident
previously evaluated; or (2) create the possibility of a new or
different kind of accident from any accident previously evaluated; or
(3) involve a significant reduction in a margin of safety. As required
by 10 CFR 50.91(a), the licensee has provided its analysis of the issue
of no significant hazards consideration, which is presented below:
1. Does the proposed change involve a significant increase in
the probability or consequences of an accident previously evaluated?
Response: No.
Of the various accidents previously evaluated, the proposed
changes only affect the steam generator tube rupture (SGTR),
postulated steam line break (SLB), locked rotor and control rod
ejection accident evaluations. Loss-of-coolant accident (LOCA)
conditions cause a compressive axial load to act on the tube.
Therefore, since the LOCA tends to force the tube into the tubesheet
rather than pull it out, it is not a factor in this amendment
request. Another faulted load consideration is a safe shutdown
earthquake (SSE); however, the seismic analysis of Model D5 steam
generators has shown that axial loading of the tubes is negligible
during an SSE.
At normal operating pressures, leakage from primary water stress
corrosion cracking (PWSCC) below 17 inches from the top of the
tubesheet is limited by both the tube-to-tubesheet crevice and the
limited crack opening permitted by the tubesheet constraint.
Consequently, negligible normal operating leakage is expected from
cracks within the tubesheet region.
For the SGTR event, the required structural margins of the steam
generator tubes is maintained by limiting the allowable ligament
size for a circumferential crack to remain in service to 203 degrees
below 17 inches from the top of the tubesheet. Tube rupture is
precluded for cracks in the hydraulic expansion region due to the
constraint provided by the tubesheet. The potential for tube pullout
is mitigated by limiting the allowable crack size to 203 degrees,
which takes into account eddy current uncertainty and crack growth
rate. It has been shown that a circumferential crack with an
azimuthal extent of 203 degrees meets the performance criteria of
NEI 97-06, Rev. 2, ``Steam Generator Program Guidelines'' and the
Draft Regulatory Guide (RG) 1.121, ``Bases for Plugging Degraded PWR
Steam Generator Tubes.'' Therefore, the margin against tube burst/
pullout is maintained during normal and postulated accident
conditions and the proposed change does not result in a significant
increase in the probability or consequence of a SGTR.
The probability of a SLB is unaffected by the potential failure
of a SG tube as the failure of a tube is not an initiator for a SLB
event. SLB leakage is limited by leakage flow restrictions resulting
from the leakage path above potential cracks through the tube-to-
tubesheet crevice.
The leak rate during postulated accident conditions has been
shown to remain within the accident analysis assumptions for all
axial or circumferentially oriented cracks occurring 17 inches below
the top of the tubesheet. Since normal operating leakage is limited
to 0.10 gallons per minute (gpm) (or 150 gallons per day (gpd)), the
attendant accident condition leak rate, assuming all leakage to be
from indications below 17 inches from the top of the tubesheet would
be bounded by 0.5 gpm. This value is within the accident analysis
assumptions for the limiting design basis accident for Byron 2,
which is the postulated SLB event.
Based on the above, the performance criteria of NEI-97-06, Rev.
2 and RG 1.121 continue to be met and the proposed change does not
involve a significant increase in the probability or consequences of
the applicable accidents previously evaluated (i.e., SLB, the locked
rotor and control rod ejection accidents).
2. Does the proposed change create the possibility of a new or
different accident from any accident previously evaluated?
Response: No.
The proposed change does not introduce any changes or mechanisms
that create the possibility of a new or different kind of accident.
Tube bundle integrity is expected to be maintained for all plant
conditions upon implementation of the interim alternate repair
criterion. The proposed change does not introduce any new equipment
or any change to existing equipment. No new effects on existing
equipment are created nor are any new malfunctions introduced.
Therefore, based on the above evaluation, the proposed changes
do not create the possibility of a new or different kind of accident
from any accident previously evaluated.
3. Does the proposed change involve a significant reduction in a
margin of safety?
Response: No.
The proposed change maintains the required structural margins of
the steam generator tubes for both normal and accident conditions.
NEI 97-06, Rev. 2 and RG 1.121 are used as the basis in the
development of the interim alternate repair criteria (IARC)
methodology for determining that steam generator tube integrity
considerations are maintained within acceptable limits. RG 1.121
describes a method acceptable to the NRC staff for meeting General
Design Criteria 14, 15, 31, and 32 by reducing the probability and
consequences of an SGTR. RG 1.121 concludes that by determining the
limiting safe conditions of tube wall degradation beyond which tubes
with unacceptable cracking, as established by inservice inspection,
should be removed from service or repaired, the probability and
consequences of a SGTR are reduced. This RG uses safety factors on
loads for tube burst that are consistent with the requirements of
Section III of the ASME Code.
For axially oriented cracking located within the tubesheet, tube
burst is precluded due to the presence of the tubesheet. For
[[Page 45486]]
circumferentially oriented cracking in a tube or the tube-to-
tubesheet weld, the Westinghouse analysis, provided in report ``LTR-
CDME-08-11 P-Attachment, Revision 3,'' supplemented by LTR-CDME-08-
43 P-Attachment, Revision 3, defines a length of remaining tube
ligament that provides the necessary resistance to tube pullout due
to the pressure induced forces (with applicable safety factors
applied). Additionally, it is shown that application of the IARC
will not result in unacceptable primary-to-secondary leakage during
all plant conditions, including transients and postulated accident
conditions.
Based on the above, it is concluded that the proposed changes do
not result in any reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on
this review, it appears that the three standards of 10 CFR 50.92(c) are
satisfied. Therefore, the NRC staff proposes to determine that the
amendment request involves no significant hazards consideration.
The Commission is seeking public comments on this proposed
determination. Any comments received within 30 days after the date of
publication of this notice will be considered in making any final
determination.
Normally, the Commission will not issue the amendment until the
expiration of 60 days after the date of publication of this notice. The
Commission may issue the license amendment before expiration of the 60-
day period provided that its final determination is that the amendment
involves no significant hazards consideration. In addition, the
Commission may issue the amendment prior to the expiration of the 30-
day comment period should circumstances change during the 30-day
comment period such that failure to act in a timely way would result,
for example, in derating or shutdown of the facility. Should the
Commission take action prior to the expiration of either the comment
period or the notice period, it will publish in the Federal Register
(FR) a notice of issuance. Should the Commission make a final No
Significant Hazards Consideration Determination, any hearing will take
place after issuance. The Commission expects that the need to take this
action will occur very infrequently.
Written comments may be submitted by mail to the Chief, Rulemaking,
Directives and Editing Branch, Division of Administrative Services,
Office of Administration, U.S. Nuclear Regulatory Commission,
Washington, DC 20555-0001, and should cite the publication date and
page number of this Federal Register notice. Written comments may also
be delivered to Room 6D59, Two White Flint North, 11545 Rockville Pike,
Rockville, Maryland, from 7:30 a.m. to 4:15 p.m. Federal workdays.
Documents may be examined, and/or copied for a fee, at the NRC's Public
Document Room (PDR), located at One White Flint North, O1F21, 11555
Rockville Pike (first floor), Rockville, Maryland.
The filing of requests for hearing and petitions for leave to
intervene is discussed below.
Within 60 days after the date of publication of this notice, the
person(s) may file a request for a hearing with respect to issuance of
the amendment to the subject facility operating license and any
person(s) whose interest may be affected by this proceeding and who
wishes to participate as a party in the proceeding must file a written
request via electronic submission through the NRC E-filing system for a
hearing and a petition for leave to intervene. Requests for a hearing
and a petition for leave to intervene shall be filed in accordance with
the Commission's ``Rules of Practice for Domestic Licensing
Proceedings'' in 10 CFR Part 2. Interested person(s) should consult a
current copy of 10 CFR 2.309, which is available at the Commission's
PDR, located at One White Flint North, O1F21, 11555 Rockville Pike
(first floor), Rockville, Maryland. Publicly available records will be
accessible from the Agencywide Documents Access and Management System's
(ADAMS) Public Electronic Reading Room on the Internet at the NRC Web
site, http://www.nrc.gov/reading-rm/doc-collections/cfr/. If a request
for a hearing or petition for leave to intervene is filed by the above
date, the Commission or a presiding officer designated by the
Commission or by the Chief Administrative Judge of the Atomic Safety
and Licensing Board Panel, will rule on the request and/or petition;
and the Secretary or the Chief Administrative Judge of the Atomic
Safety and Licensing Board will issue a notice of a hearing or an
appropriate order.
As required by 10 CFR 2.309, a petition for leave to intervene
shall set forth with particularity the interest of the petitioner in
the proceeding, and how that interest may be affected by the results of
the proceeding. The petition should specifically explain the reasons
why intervention should be permitted with particular reference to the
following general requirements: (1) The name, address and telephone
number of the requestor or petitioner; (2) the nature of the
requestor's/petitioner's right under the Act to be made a party to the
proceeding; (3) the nature and extent of the requestor's/petitioner's
property, financial, or other interest in the proceeding; and (4) the
possible effect of any decision or order which may be issued in the
proceeding on the requestors/petitioner's interest. The petition must
also identify the specific contentions which the petitioner/requestor
seeks to have litigated at the proceeding.
In accordance with 10 CFR 2.309, each contention must consist of a
specific statement of the issue of law or fact to be raised or
controverted. In addition, the petitioner/requestor shall provide a
brief explanation of the bases for the contention and a concise
statement of the alleged facts or expert opinion which support the
contention and on which the petitioner intends to rely in proving the
contention at the hearing. The petitioner/requestor must also provide
references to those specific sources and documents of which the
petitioner is aware and on which the petitioner intends to rely to
establish those facts or expert opinion. The petition must include
sufficient information to show that a genuine dispute exists with the
applicant on a material issue of law or fact. Contentions shall be
limited to matters within the scope of the amendment under
consideration. The contention must be one which, if proven, would
entitle the petitioner to relief. A petitioner/requestor who fails to
satisfy these requirements with respect to at least one contention will
not be permitted to participate as a party.
Those permitted to intervene become parties to the proceeding,
subject to any limitations in the order granting leave to intervene,
and have the opportunity to participate fully in the conduct of the
hearing.
If a hearing is requested, the Commission will make a final
determination on the issue of no significant hazards consideration. The
final determination will serve to decide when the hearing is held. If
the final determination is that the amendment request involves no
significant hazards consideration, the Commission may issue the
amendment and make it immediately effective, notwithstanding the
request for a hearing. Any hearing held would take place after issuance
of the amendment. If the final determination is that the amendment
request involves a significant hazards consideration, any hearing held
would take place before the issuance of any amendment.
A request for hearing or a petition for leave to intervene must be
filed in accordance with the NRC E-Filing rule,
[[Page 45487]]
which the NRC promulgated on August 28, 2007 (72 FR 49139). The E-
Filing process requires participants to submit and serve documents over
the Internet or in some cases to mail copies on electronic storage
media. Participants may not submit paper copies of their filings unless
they seek a waiver in accordance with the procedures described below.
To comply with the procedural requirements of E-Filing, at least
ten (10) days prior to the filing deadline, the petitioner/requestor
must contact the Office of the Secretary by e-mail at
[email protected], or by calling (301) 415-1677, to request (1) a
digital ID certificate, which allows the participant (or its counsel or
representative) to digitally sign documents and access the E-Submittal
server for any proceeding in which it is participating; and/or (2)
creation of an electronic docket for the proceeding (even in instances
in which the petitioner/requestor (or its counsel or representative)
already holds an NRC-issued digital ID certificate). Each petitioner/
requestor will need to download the Workplace Forms Viewer\TM\ to
access the Electronic Information Exchange (EIE), a component of the E-
Filing system. The Workplace Forms Viewer\TM\ is free and is available
at http://www.nrc.gov/site-help/e-submittals/install-viewer.html.
Information about applying for a digital ID certificate is available on
NRC's public Web site at http://www.nrc.gov/site-help/e-submittals/apply-certificates.html.
Once a petitioner/requestor has obtained a digital ID certificate,
had a docket created, and downloaded the EIE viewer, it can then submit
a request for hearing or petition for leave to intervene. Submissions
should be in Portable Document Format (PDF) in accordance with NRC
guidance available on the NRC public Web site at http://www.nrc.gov/site-help/e-submittals.html. A filing is considered complete at the
time the filer submits its documents through EIE. To be timely, an
electronic filing must be submitted to the EIE system no later than
11:59 p.m., Eastern Time on the due date. Upon receipt of a
transmission, the E-Filing system time-stamps the document and sends
the submitter an e-mail notice confirming receipt of the document. The
EIE system also distributes an e-mail notice that provides access to
the document to the NRC Office of the General Counsel and any others
who have advised the Office of the Secretary that they wish to
participate in the proceeding, so that the filer need not serve the
documents on those participants separately. Therefore, applicants and
other participants (or their counsel or representative) must apply for
and receive a digital ID certificate before a hearing request/petition
to intervene is filed so that they can obtain access to the document
via the E-Filing system.
A person filing electronically may seek assistance through the
``Contact Us'' link located on the NRC Web site at http://www.nrc.gov/site-help/e-submittals.html or by calling the NRC technical help line,
which is available between 8:30 a.m. and 4:15 p.m., Eastern Time,
Monday through Friday. The help line number is (800) 397-4209 or
locally, (301) 415-4737. Participants who believe that they have a good
cause for not submitting documents electronically must file a motion,
in accordance with 10 CFR 2.302(g), with their initial paper filing
requesting authorization to continue to submit documents in paper
format. Such filings must be submitted by: (1) First-class mail
addressed to the Office of the Secretary of the Commission, U.S.
Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention:
Rulemaking and Adjudications Staff; or (2) courier, express mail, or
expedited delivery service to the Office of the Secretary, Sixteenth
Floor, One White Flint North, 11555 Rockville Pike, Rockville, Maryland
20852, Attention: Rulemaking and Adjudications Staff. Participants
filing a document in this manner are responsible for serving the
document on all other participants. Filing is considered complete by
first-class mail as of the time of deposit in the mail, or by courier,
express mail, or expedited delivery service upon depositing the
document with the provider of the service.
Non-timely requests and/or petitions and contentions will not be
entertained absent a determination by the Commission, the presiding
officer, or the Atomic Safety and Licensing Board that the petition
and/or request should be granted and/or the contentions should be
admitted, based on a balancing of the factors specified in 10 CFR
2.309(c)(1)(i)-(viii). To be timely, filings must be submitted no later
than 11:59 p.m., Eastern Time, on the due date.
Documents submitted in adjudicatory proceedings will appear in
NRC's electronic hearing docket which is available to the public at
http://ehd.nrc.gov/EHD_Proceeding/home.asp, unless excluded pursuant
to an order of the Commission, an Atomic Safety and Licensing Board, or
a Presiding Officer. Participants are requested not to include personal
privacy information, such as social security numbers, home addresses,
or home phone numbers in their filings. With respect to copyrighted
works, except for limited excerpts that serve the purpose of the
adjudicatory filings and would constitute a Fair Use application,
participants are requested not to include copyrighted materials in
their submissions.
For further details with respect to this license amendment
application, see the application for amendment dated June 17, 2008,
which is available for public inspection at the Commission's PDR,
located at One White Flint North, O1F21, 11555 Rockville Pike (first
floor), Rockville, Maryland. Publicly available records will be
accessible electronically from the ADAMS Public Electronic Reading Room
on the Internet at the NRC Web site, http://www.nrc.gov/reading-rm/adams.html. Persons who do not have access to ADAMS or who encounter
problems in accessing the documents located in ADAMS, should contact
the NRC PDR Reference staff by telephone at 1-800-397-4209, 301-415-
4737, or by e-mail to [email protected].
Order Imposing Procedures for Access to Sensitive Unclassified Non-
Safeguards Information (SUNSI) for Contention Preparation Exelon
Generation Company, LLC Byron Station, Unit Nos. 1 and 2, Ogle County,
Illinois [Docket Nos. 50-454 and 50-455]
1. This order contains instructions regarding how potential parties
to this proceeding may request access to documents containing sensitive
unclassified information (including SUNSI and safeguards information
(SGI)).
2. Within ten (10) days after publication of this notice of
opportunity for hearing, any potential party as defined in 10 CFR 2.4
who believes access to SUNSI or SGI is necessary for a response to the
notice may request access to SUNSI or SGI. A ``potential party'' is any
person who intends or may intend to participate as a party by
demonstrating standing and the filing of an admissible contention under
10 CFR 2.309. Requests submitted later than ten (10) days will not be
considered absent a showing of good cause for the late filing,
addressing why the request could not have been filed earlier.
3. The requester shall submit a letter requesting permission to
access SUNSI and/or SGI to the Office of the Secretary, U.S. Nuclear
Regulatory Commission, Washington, DC 20555-0001, Attention:
Rulemakings and Adjudications Staff, and provide a copy to the
Associate General Counsel for Hearings,
[[Page 45488]]
Enforcement and Administration, Office of the General Counsel,
Washington, DC 20555-0001. The expedited delivery or courier mail
address for both offices is U.S. Nuclear Regulatory Commission, 11555
Rockville Pike, Rockville, Maryland 20852. The e-mail address for the
Office of the Secretary and the Office of the General Counsel are
[email protected] and [email protected], respectively.\1\ The request
must include the following information:
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\1\ See footnote 6. While a request for hearing or petition to
intervene in this proceeding must comply with the filing
requirements of the NRC's ``E-Filing Rule,'' the initial request to
access SUNSI and/or SGI under these procedures should be submitted
as described in this paragraph.
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a. A description of the licensing action with a citation to this
Federal Register notice of opportunity for hearing;
b. The name and address of the potential party and a description of
the potential party's particularized interest that could be harmed by
the licensing action identified in (a) if the licensing action is not
sustained;
c. If the request is for SUNSI, the identity of the individual
requesting access to SUNSI and the requester's need for the information
in order to meaningfully participate in this adjudicatory proceeding,
particularly why publicly available versions of the application would
not be sufficient to provide the basis and specificity for a proffered
contention;
d. If the request is for SGI, the identity of the individual
requesting access to SGI and the identity of any expert, consultant or
assistant who will aid the requester in evaluating the SGI, and
information that shows:
(i) Why the information is indispensable to meaningful
participation in this licensing proceeding; and
(ii) The technical competence (demonstrable knowledge, skill,
experience, training or education) of the requester to understand and
use (or evaluate) the requested information to provide the basis and
specificity for a proffered contention. The technical competence of a
potential party or its counsel may be shown by reliance on a qualified
expert, consultant or assistant who demonstrates technical competence
as well as trustworthiness and reliability, and who agrees to sign a
non-disclosure affidavit and be bound by the terms of a protective
order; and
e. If the request is for SGI, Form SF-85, ``Questionnaire for Non-
Sensitive Positions,'' Form FD-258 (fingerprint card), and a credit
check release form completed by the individual who seeks access to SGI
and each individual who will aid the requester in evaluating the SGI.
For security reasons, Form SF-85 can only be submitted electronically,
through a restricted-access database. To obtain online access to the
form, the requester should contact the NRC's Office of Administration
at 301-415-0320.\2\ The other completed forms must be signed in
original ink, accompanied by a check or money order payable in the
amount of $191.00 to the U.S. Nuclear Regulatory Commission for each
individual, and mailed to the: Office of Administration, Security
Processing Unit, Mail Stop T-6E46, U.S. Nuclear Regulatory Commission,
Washington, DC 20555-0012.
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\2\ The requester will be asked to provide his or her full name,
social security number, date and place of birth, telephone number,
and e-mail address. After providing this information, the requester
usually should be able to obtain access to the online form within
one business day.
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These forms will be used to initiate the background check, which
includes fingerprinting as part of a criminal history records check.
Note: Copies of these forms do not need to be included with the request
letter to the Office of the Secretary, but the request letter should
state that the forms and fees have been submitted as described above.
4. To avoid delays in processing requests for access to SGI, all
forms should be reviewed for completeness and accuracy (including
legibility) before submitting them to the NRC. Incomplete packages will
be returned to the sender and will not be processed.
5. Based on an evaluation of the information submitted under items
2 and 3.a through 3.d, above, the NRC staff will determine within ten
days of receipt of the written access request whether (1) there is a
reasonable basis to believe the petitioner is likely to establish
standing to participate in this NRC proceeding, and (2) there is a
legitimate need for access to SUNSI or need to know the SGI requested.
For SGI, the need to know determination is made based on whether the
information requested is necessary (i.e., indispensable) for the
proposed recipient to proffer and litigate a specific contention in
this NRC proceeding \3\ and whether the proposed recipient has the
technical competence (demonstrable knowledge, skill, training,
education, or experience) to evaluate and use the specific SGI
requested in this proceeding.
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\3\ Broad SGI requests under these procedures are thus highly
unlikely to meet the standard for need to know; furthermore, staff
redaction of information from requested documents before their
release may be appropriate to comport with this requirement. These
procedures do not authorize unrestricted disclosure or less scrutiny
of a requester's need to know than ordinarily would be applied in
connection with an already-admitted contention.
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6. If standing and need to know SGI are shown, the NRC staff will
further determine based upon completion of the background check whether
the proposed recipient is trustworthy and reliable. The NRC staff will
conduct (as necessary) an inspection to confirm that the recipient's
information protection systems are sufficient to protect SGI from
inadvertent release or disclosure. Recipients may opt to view SGI at
the NRC's facility rather than establish their own SGI protection
program to meet SGI protection requirements.
7. A request for access to SUNSI or SGI will be granted if:
a. The request has demonstrated that there is a reasonable basis to
believe that a potential party is likely to establish standing to
intervene or to otherwise participate as a party in this proceeding;
b. The proposed recipient of the information has demonstrated a
need for SUNSI or a need to know for SGI, and that the proposed
recipient of SGI is trustworthy and reliable;
c. The proposed recipient of the information has executed a Non-
Disclosure Agreement or Affidavit and agrees to be bound by the terms
of a Protective Order setting forth terms and conditions to prevent the
unauthorized or inadvertent disclosure of SUNSI and/or SGI; and
d. The presiding officer has issued a protective order concerning
the information or documents requested.\4\ Any protective order issued
shall provide that the petitioner must file SUNSI or SGI contentions 25
days after receipt of (or access to) that information. However, if more
than 25 days remain between the petitioner's receipt of (or access to)
the information and the deadline for filing all other contentions (as
established in the notice of hearing or opportunity for hearing), the
petitioner may file its SUNSI or SGI contentions by that later
deadline.
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\4\ If a presiding officer has not yet been designated, the
Chief Administrative Judge will issue such orders, or will appoint a
presiding officer to do so.
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8. If the request for access to SUNSI or SGI is granted, the terms
and conditions for access to sensitive unclassified information will be
set forth in a draft protective order and affidavit of non-disclosure
appended to a joint motion by the NRC staff, any other affected parties
to this proceeding,\5\ and the petitioner(s). If the
[[Page 45489]]
diligent efforts by the relevant parties or petitioner(s) fail to
result in an agreement on the terms and conditions for a draft
protective order or non-disclosure affidavit, the relevant parties to
the proceeding or the petitioner(s) should notify the presiding officer
within five (5) days, describing the obstacles to the agreement.
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\5\ Parties/persons other than the requester and the NRC staff
will be notified by the NRC staff of a favorable access
determination (and may participate in the development of such a
motion and protective order) if it concerns SUNSI and if the party/
person's interest independent of the proceeding would be harmed by
the release of the information (e.g., as with proprietary
information).
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9. If the request for access to SUNSI is denied by the NRC staff or
a request for access to SGI is denied by NRC staff either after a
determination on standing and need to know or, later, after a
determination on trustworthiness and reliability, the NRC staff shall
briefly state the reasons for the denial. Before the Office of
Administration makes an adverse determination regarding access, the
proposed recipient must be provided an opportunity to correct or
explain information. The requester may challenge the NRC staff's
adverse determination with respect to access to SUNSI or with respect
to standing or need to know for SGI by filing a challenge within five
(5) days of receipt of that determination with (a) the presiding
officer designated in this proceeding; (b) if no presiding officer has
been appointed, the Chief Administrative Judge, or if he or she is
unavailable, another administrative judge, or an administrative law
judge with jurisdiction pursuant to 10 CFR 2.318(a); or (c) if another
officer has been designated to rule on information access issues, with
that officer. In the same manner, an SGI requester may challenge an
adverse determination on trustworthiness and reliability by filing a
challenge within fifteen (15) days of receipt of that determination.
In the same manner, a party other than the requester may challenge
an NRC staff determination granting access to SUNSI whose release would
harm that party's interest independent of the proceeding. Such a
challenge must be filed within five (5) days of the notification by the
NRC staff of its grant of such a request. If challenges to the NRC
staff determinations are filed, these procedures give way to the normal
process for litigating disputes concerning access to information. The
availability of interlocutory review by the Commission of orders ruling
on such NRC staff determinations (whether granting or denying access)
is governed by 10 CFR 2.311.\6\
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\6\ As of October 15, 2007, the NRC's final ``E-Filing Rule''
became effective. See Use of Electronic Submissions in Agency
Hearings (72 FR 49139; Aug. 28, 2007). Requesters should note that
the filing requirements of that rule apply to appeals of NRC staff
determinations (because they must be served on a presiding officer
or the Commission, as applicable), but not to the initial SUNSI/SGI
requests submitted to the NRC staff under these procedures.
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10. The Commission expects that the NRC staff and presiding
officers (and any other reviewing officers) will consider and resolve
requests for access to SUNSI and/or SGI, and motions for protective
orders, in a timely fashion in order to minimize any unnecessary delays
in identifying those petitioners who have standing and who have
propounded contentions meeting the specificity and basis requirements
in 10 CFR Part 2. Attachment 1 to this Order summarizes the general
target schedule for processing and resolving requests under these
procedures.
Dated at Rockville, Maryland, this 30th day of July 2008.
For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
Attachment 1--General Target Schedule for Processing and Resolving
Requests for Access to Sensitive Unclassified Non-Safeguards Information
(SUNSI) and Safeguards Information (SGI) in This Proceeding
------------------------------------------------------------------------
Day Event/activity
------------------------------------------------------------------------
0............................ Publication of Federal Register notice of
proposed action and opportunity for
hearing, including order with
instructions for access requests.
10........................... Deadline for submitting requests for
access to SUNSI and/or SGI with
information: Supporting the standing of
a potential party identified by name and
address; describing the need for the
information in order for the potential
party to participate meaningfully in an
adjudicatory proceeding; demonstrating
that access should be granted (e.g.,
showing technical competence for access
to SGI); and, for SGI, including
application fee for fingerprint/
background check.
60........................... Deadline for submitting petition for
intervention containing: (i)
Demonstration of standing; (ii) all
contentions whose formulation does not
require access to SUNSI and/or SGI (+25
Answers to petition for intervention; +7
petitioner/requestor reply).
20........................... NRC staff informs the requester of the
staff's determination whether the
request for access provides a reasonable
basis to believe standing can be
established and shows (1) need for
SUNSI, or (2) need to know for SGI. (For
SUNSI, NRC staff also informs any party
to the proceeding whose interest
independent of the proceeding would be
harmed by the release of the
information.) If NRC staff makes the
finding of need for SUNSI and likelihood
of standing, NRC staff begins document
processing (preparation of redactions or
review of redacted documents). If NRC
staff makes the finding of need to know
for SGI and likelihood of standing, NRC
staff begins background check (including
fingerprinting for a criminal history
records check), information processing
(preparation of redactions or review of
redacted documents), and readiness
inspections.
25........................... If NRC staff finds no ``need,'' ``need to
know,'' or likelihood of standing, the
deadline for petitioner/requester to
file a motion seeking a ruling to
reverse the NRC staff's denial of
access; NRC staff files copy of access
determination with the presiding officer
(or Chief Administrative Judge or other
designated officer, as appropriate). If
NRC staff finds ``need'' for SUNSI, the
deadline for any party to the proceeding
whose interest independent of the
proceeding would be harmed by the
release of the information to file a
motion seeking a ruling to reverse the
NRC staff's grant of access.
30........................... Deadline for NRC staff reply to motions
to reverse NRC staff determination(s).
40........................... (Receipt +30) If NRC staff finds standing
and need for SUNSI, deadline for NRC
staff to complete information processing
and file motion for Protective Order and
draft Non-Disclosure Affidavit. Deadline
for applicant/licensee to file Non-
Disclosure Agreement for SUNSI.
190.......................... (Receipt +180) If NRC staff finds
standing, need to know for SGI, and
trustworthiness and reliability,
deadline for NRC staff to file motion
for Protective Order and draft Non-
disclosure Affidavit (or to make a
determination that the proposed
recipient of SGI is not trustworthy or
reliable). Note: Before the Office of
Administration makes an adverse
determination regarding access, the
proposed recipient must be provided an
opportunity to correct or explain
information.
205.......................... Deadline for petitioner to seek reversal
of a final adverse NRC staff
determination either before the
presiding officer or another designated
officer.
A............................ If access granted: Issuance of presiding
officer or other designated officer
decision on motion for protective order
for access to sensitive information
(including schedule for providing access
and submission of contentions) or
decision reversing a final adverse
determination by the NRC staff.
[[Page 45490]]
A + 3........................ Deadline for filing executed Non-
Disclosure Affidavits. Access provided
to SUNSI and/or SGI consistent with
decision issuing the protective order.
A + 28....................... Deadline for submission of contentions
whose development depends upon access to
SUNSI and/or SGI. However, if more than
25 days remain between the petitioner's
receipt of (or access to) the
information and the deadline for filing
all other contentions (as established in
the notice of hearing or opportunity for
hearing), the petitioner may file its
SUNSI or SGI contentions by that later
deadline.
A + 53....................... (Contention receipt +25) Answers to
contentions whose development depends
upon access to SUNSI and/or SGI.
A + 60....................... (Answer receipt +7) Petitioner/Intervenor
reply to answers.
B............................ Decision on contention admission.
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[FR Doc. E8-17907 Filed 8-4-08; 8:45 am]
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