[Federal Register Volume 75, Number 13 (Thursday, January 21, 2010)]
[Notices]
[Pages 3497-3501]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-1077]
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NUCLEAR REGULATORY COMMISSION
[Docket Nos. 50-247 and 50-286; NRC-2010-0006]
Entergy Nuclear Operations, Inc., Entergy Nuclear Indian Point 2,
LLC, Entergy Nuclear Indian Point 3, LLC,: Indian Point Nuclear
Generating Unit Nos. 2 and 3; Notice of Consideration of Issuance of
Amendment to Facility Operating License and Opportunity To Request a
Hearing, and Order Imposing Procedures for Access to Sensitive
Unclassified Non-Safeguards Information
AGENCY: Nuclear Regulatory Commission.
ACTION: Notice of amendment and opportunity to request a hearing and to
petition for leave to intervene.
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DATES: Request for a hearing and/or petition for leave to intervene
must be filed within 60 days after the date of publication of this
notice in the Federal Register. Any potential party as defined in 10
CFR 2.4 who believes access to Sensitive Unclassified Non-Safeguards
Information and/or Safeguards Information is necessary to respond to
this notice must request document access within 10 days after the date
of publication of this notice in the Federal Register.
I. Introduction
The U.S. Nuclear Regulatory Commission (NRC or the Commission) is
considering an application for amendment to Facility Operating License
Nos. DPR-26 and DPR-64, issued to Entergy Nuclear Operations, Inc.
(Entergy) and Entergy Nuclear Indian Point 2, LLC, for operation of the
Indian Point Nuclear Generating Unit No. 2 (IP2) and to Entergy and
Entergy Nuclear Indian Point 3, LLC, for operation of the Indian Point
Nuclear Generating Unit No. 3 (IP3), both located in Westchester
County, New York.
The proposed amendment would revise the IP2 and IP3 operating
licenses to permit the transfer of spent fuel from IP3 to IP2, using a
newly-designed transfer cask, with plans for further transfer to the
onsite independent spent fuel storage installation, on an as-needed
basis as determined by Entergy's fuel management needs. The July 8,
2009, application (Agencywide Documents Access and Management System
(ADAMS) Accession No. ML091940177 and ML091940178), as supplemented by
letters dated September 28 and October 26, 2009 (ADAMS Accession Nos.
ML092950437 and ML093020080) contains proprietary information, which
the Commission classifies as sensitive unclassified non-safeguards
information (SUNSI). 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.
These findings will be documented in a Safety Evaluation Report and an
Environmental Assessment and/or an Environmental Impact Statement.
II. Opportunity To Request a Hearing
Within 60 days after the date of publication of this notice in the
Federal Register, any person(s) whose interest may be affected by this
action and who desires to participate as a party to this action, may
file a request for a hearing and a petition to intervene with respect
to whether the amendment to the subject facility operating licenses
should be issued. Requests for a hearing and petitions 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,
``Hearing Requests, Petitions to Intervene, Requirements for Standing,
and Contentions,'' which is available at the Commission's Public
Document Room (PDR), located at One White Flint North, Room O1-F21,
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.
III. Petitions for Leave To Intervene
As required by 10 CFR 2.309, a petition for leave to intervene or
request for hearing shall set forth with particularity the interest of
the petitioner/requester 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 requester or petitioner;
(2) the nature of the requester's/petitioner's right under the Act to
be made a party to the proceeding; (3) the nature and extent of the
requester's/petitioner's property, financial, or other interest in the
proceeding; and (4) the possible effect of any decision or order which
may be entered in the proceeding on the requester's/petitioner's
interest.
The petition must also identify the specific contentions which the
petitioner/requester seeks to have litigated in the proceeding. Each
contention must consist of a specific statement of the issue of law or
fact to be raised or controverted, as well as a brief explanation of
the basis for the contention. The petitioner must demonstrate that the
issue raised by each contention is within the scope of the proceeding
and is material to the findings that the NRC must make to support the
granting of the license amendment in response to the application. The
petition must also include 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 must also provide references to those specific sources and
documents of which the petitioner is aware and on which the petitioner
intends to rely.
[[Page 3498]]
Finally, the petition must include sufficient information to show that
a genuine dispute exists with the applicant on a material issue of law
or fact, including references to specific portions of the application
for amendment that the petitioner disputes and the supporting reasons
for each dispute, or, if the petitioner believes that the application
for amendment fails to contain information on a relevant matter as
required by law, the identification of each failure and the supporting
reasons for the petitioner's belief. Contentions shall be limited to
matters within the scope of the license amendment under consideration.
The contention must be one which, if proven, would entitle the
petitioner/requester to relief. A petitioner/requester who fails to
satisfy these requirements with respect to at least one contention will
not be permitted to participate as a party.
Those permitted to intervene become parties to the proceeding,
subject to any limitations in the order granting leave to intervene,
and have the opportunity to participate fully in the conduct of the
hearing with respect to resolution of that person's admitted
contentions, including the opportunity to present evidence and to
submit proposed Board questions or a cross-examination plan for cross-
examination of witnesses, consistent with NRC regulations, policies,
and procedures. The Licensing Board, if one is appointed, will set the
time and place for any prehearing conferences and evidentiary hearings.
Non-timely petitions for leave to intervene and contentions,
amended petitions, and supplemental petitions will not be entertained
absent a determination by the Commission, the Licensing Board or a
Presiding Officer that the petition should be granted and/or the
contentions should be admitted based on a balancing of the factors
specified in 10 CFR 2.309(c)(1)(i)-(viii).
A State, county, municipality, Federally-recognized Indian Tribe,
or agencies thereof, may submit a petition to the Commission to
participate as a party under 10 CFR 2.309(d)(2). The petition should
state the nature and extent of the petitioner's interest in the
proceeding. The petition should be submitted to the Commission within
60 days after the date of publication of this notice in the Federal
Register. The petition must be filed in accordance with the filing
instructions in section IV of this document, and should meet the
requirements for petitions for leave to intervene set forth in this
section, except that States and Federally-recognized Indian tribes do
not need to address the standing requirements in 10 CFR 2.309(d)(1) if
the facility is located within their boundaries. The entities listed
above could also seek to participate in a hearing as a nonparty
participant pursuant to 10 CFR 2.315(c).
IV. Electronic Submissions (E-Filing)
All documents filed in NRC adjudicatory proceedings, including a
request for hearing, a petition for leave to intervene, any motion or
other document filed in the proceeding prior to the submission of a
request for hearing or petition to intervene, and documents filed by
interested governmental entities participating under 10 CFR 2.315(c),
must be filed in accordance with the NRC E-Filing rule (72 FR 49139,
August 28, 2007). The E-Filing process requires participants to submit
and serve all adjudicatory documents over the internet, or in some
cases to mail copies on electronic storage media. Participants may not
submit paper copies of their filings unless they seek an exemption in
accordance with the procedures described below.
To comply with the procedural requirements of E-Filing, at least
ten (10) days prior to the filing deadline, the participant should
contact the Office of the Secretary by e-mail at
[email protected], or by telephone at (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
(2) advise the Secretary that the participant will be submitting a
request or petition for hearing (even in instances in which the
participant, or its counsel or representative, already holds an NRC-
issued digital ID certificate). Based upon this information, the
Secretary will establish an electronic docket for the hearing in this
proceeding if the Secretary has not already established an electronic
docket.
Information about applying for a digital ID certificate is
available on NRC's public Web site at http://www.nrc.gov/site-help/e-submittals/apply-certificates.html. System requirements for accessing
the E-Submittal server are detailed in NRC's ``Guidance for Electronic
Submission,'' which is available on the agency's public Web site at
http://www.nrc.gov/site-help/e-submittals.html. Participants may
attempt to use other software not listed on the Web site, but should
note that the NRC's E-Filing system does not support unlisted software,
and the NRC Meta System Help Desk will not be able to offer assistance
in using unlisted software.
If a participant is electronically submitting a document to the NRC
in accordance with the E-Filing rule, the participant must file the
document using the NRC's online, Web-based submission form. In order to
serve documents through EIE, users will be required to install a Web
browser plug-in from the NRC Web site. Further information on the Web-
based submission form, including the installation of the Web browser
plug-in, is available on the NRC's public Web site at http://www.nrc.gov/site-help/e-submittals.html.
Once a participant has obtained a digital ID certificate and a
docket has been created, the participant can then submit a request for
hearing or petition for leave to intervene. Submissions should be in
Portable Document Format (PDF) in accordance with NRC guidance
available on the NRC public Web site at http://www.nrc.gov/site-help/e-submittals.html. A filing is considered complete at the time the
documents are submitted through the NRC's E-Filing system. To be
timely, an electronic filing must be submitted to the E-Filing system
no later than 11:59 p.m. Eastern Time on the due date. Upon receipt of
a transmission, the E-Filing system time-stamps the document and sends
the submitter an e-mail notice confirming receipt of the document. The
E-Filing 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 using the agency's adjudicatory E-
Filing system may seek assistance by contacting the NRC Meta System
Help Desk through the ``Contact Us'' link located on the NRC Web site
at http://www.nrc.gov/site-help/e-submittals.html, by e-mail at
[email protected], or by a toll-free call at (866) 672-7640. The
NRC Meta System Help Desk is available between 8 a.m. and 8 p.m.,
Eastern Time, Monday through Friday, excluding government holidays.
Participants who believe that they have a good cause for not
submitting
[[Page 3499]]
documents electronically must file an exemption request, in accordance
with 10 CFR 2.302(g), with their initial paper filing requesting
authorization to continue to submit documents in paper format. Such
filings must be submitted by: (1) First class mail addressed to the
Office of the Secretary of the Commission, U.S. Nuclear Regulatory
Commission, Washington, DC 20555-0001, Attention: Rulemaking and
Adjudications Staff; or (2) courier, express mail, or expedited
delivery service to the Office of the Secretary, Sixteenth Floor, One
White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852,
Attention: Rulemaking and Adjudications Staff. Participants filing a
document in this manner are responsible for serving the document on all
other participants. Filing is considered complete by first-class mail
as of the time of deposit in the mail, or by courier, express mail, or
expedited delivery service upon depositing the document with the
provider of the service. A presiding officer, having granted an
exemption request from using E-Filing, may require a participant or
party to use E-Filing if the presiding officer subsequently determines
that the reason for granting the exemption from use of E-Filing no
longer exists.
Documents submitted in adjudicatory proceedings will appear in
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, or the presiding officer. Participants
are requested not to include personal privacy information, such as
social security numbers, home addresses, or home phone numbers in their
filings, unless an NRC regulation or other law requires submission of
such information. With respect to copyrighted works, except for limited
excerpts that serve the purpose of the adjudicatory filings and would
constitute a Fair Use application, participants are requested not to
include copyrighted materials in their submission.
V. Hybrid Hearing Procedures
The Commission hereby provides notice that this is a proceeding on
an application for a license amendment falling within the scope of
section 134 of the Nuclear Waste Policy Act of 1982 (NWPA), 42 U.S.C.
10154. Under section 134 of the NWPA, the Commission, at the request of
any party to the proceeding, must use hybrid hearing procedures with
respect to ``any matter which the Commission determines to be in
controversy among the parties.''
The hybrid procedures in section 134 provide for oral argument on
matters in controversy, preceded by discovery under the Commission's
rules and the designation, following argument of only those factual
issues that involve a genuine and substantial dispute, together with
any remaining questions of law, to be resolved in an adjudicatory
hearing. Actual adjudicatory hearings are to be held on only those
issues found to meet the criteria of section 134 and set for hearing
after oral argument.
The Commission's rules implementing section 134 of the NWPA are
found in 10 CFR Part 2, Subpart K, ``Hybrid Hearing Procedures for
Expansion of Spent Fuel Storage Capacity at Civilian Nuclear Power
Reactors.'' Under those rules, any party to the proceeding may invoke
the hybrid hearing procedures by filing with the presiding officer a
written request for oral argument under 10 CFR 2.1109. To be timely,
the request must be filed together with a request for hearing/petition
to intervene, filed in accordance with 10 CFR 2.309. If it is
determined a hearing will be held, the presiding officer must grant a
timely request for oral argument. The presiding officer may grant an
untimely request for oral argument only upon a showing of good cause by
the requesting party for the failure to file on time and after
providing the other parties an opportunity to respond to the untimely
request. If the presiding officer grants a request for oral argument,
any hearing held on the application must be conducted in accordance
with the hybrid hearing procedures. In essence, those procedures limit
the time available for discovery and require that an oral argument be
held to determine whether any contentions must be resolved in an
adjudicatory hearing. If no party to the proceeding timely requests
oral argument, and if all untimely requests for oral argument are
denied, then the usual procedures in 10 CFR Part 2, Subpart L apply.
For further details with respect to this license amendment
application, see the application for amendment dated July 8, 2009,
(ADAMS Accession Nos. ML091940177 and ML091940178), as supplemented by
letters dated September 28 and October 26, 2009 (ADAMS Accession Nos.
ML092950437 and ML093020080) which are available for public inspection
at the Commission's PDR, located at One White Flint North, Public File
Area O1 F21, 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, or 301-415-4737, or by e-mail to
[email protected].
Attorney for the licensee: William C. Dennis, Assistant General
Counsel, Entergy Nuclear Operations, Inc., 440 Hamilton Avenue, White
Plains, NY 10601.
Order Imposing Procedures for Access to Sensitive Unclassified Non-
Safeguards Information for Contention Preparation
A. This Order contains instructions regarding how potential parties
to this proceeding may request access to documents containing Sensitive
Unclassified Non-Safeguards Information (SUNSI).
B. Within 10 days after publication of this notice of hearing and
opportunity to petition for leave to intervene, any potential party who
believes access to SUNSI is necessary to respond to this notice may
request such access. A ``potential party'' is any person who intends to
participate as a party by demonstrating standing and filing an
admissible contention under 10 CFR 2.309. Requests for access to SUNSI
submitted later than 10 days after publication will not be considered
absent a showing of good cause for the late filing, addressing why the
request could not have been filed earlier.
C. The requester shall submit a letter requesting permission to
access SUNSI to the Office of the Secretary, U.S. Nuclear Regulatory
Commission, Washington, DC 20555-0001, Attention: Rulemakings and
Adjudications Staff, and provide a copy to the Associate General
Counsel for Hearings, Enforcement and Administration, Office of the
General Counsel, Washington, DC 20555-0001. The expedited delivery or
courier mail address for both offices is: U.S. Nuclear Regulatory
Commission, 11555 Rockville Pike, Rockville, Maryland 20852. The 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\ While a request for hearing or petition to intervene in this
proceeding must comply with the filing requirements of the NRC's
``E-Filing Rule,'' the initial request to access SUNSI under these
procedures should be submitted as described in this paragraph.
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[[Page 3500]]
(1) A description of the licensing action with a citation to this
Federal Register notice;
(2) The name and address of the potential party and a description
of the potential party's particularized interest that could be harmed
by the action identified in C.(1);
(3) The identity of the individual or entity requesting access to
SUNSI and the requester's basis for the need for the information in
order to meaningfully participate in this adjudicatory proceeding. In
particular, the request must explain why publicly-available versions of
the information requested would not be sufficient to provide the basis
and specificity for a proffered contention;
D. Based on an evaluation of the information submitted under
paragraph C.(3) the NRC staff will determine within 10 days of receipt
of the request whether:
(1) There is a reasonable basis to believe the petitioner is likely
to establish standing to participate in this NRC proceeding; and
(2) The requestor has established a legitimate need for access to
SUNSI.
E. If the NRC staff determines that the requestor satisfies both
D.(1) and D.(2) above, the NRC staff will notify the requestor in
writing that access to SUNSI has been granted. The written notification
will contain instructions on how the requestor may obtain copies of the
requested documents, and any other conditions that may apply to access
to those documents. These conditions may include, but are not limited
to, the signing of a Non-Disclosure Agreement or Affidavit, or
Protective Order \2\ setting forth terms and conditions to prevent the
unauthorized or inadvertent disclosure of SUNSI by each individual who
will be granted access to SUNSI.
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\2\ Any motion for Protective Order or draft Non-Disclosure
Affidavit or Agreement for SUNSI must be filed with the presiding
officer or the Chief Administrative Judge if the presiding officer
has not yet been designated, within 30 days of the deadline for the
receipt of the written access request.
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F. Filing of Contentions. Any contentions in these proceedings that
are based upon the information received as a result of the request made
for SUNSI must be filed by the requestor no later than 25 days after
the requestor is granted access to that information. However, if more
than 25 days remain between the date the petitioner is granted access
to the information and the deadline for filing all other contentions
(as established in the notice of hearing or opportunity for hearing),
the petitioner may file its SUNSI contentions by that later deadline.
G. Review of Denials of Access.
(1) If the request for access to SUNSI is denied by the NRC staff
either after a determination on standing and need for access, or after
a determination on trustworthiness and reliability, the NRC staff shall
immediately notify the requestor in writing, briefly stating the reason
or reasons for the denial.
(2) The requester may challenge the NRC staff's adverse
determination by filing a challenge within 5 days of receipt of that
determination with: (a) The presiding officer designated in this
proceeding; (b) if no presiding officer has been appointed, the Chief
Administrative Judge, or if he or she is unavailable, another
administrative judge, or an administrative law judge with jurisdiction
pursuant to 10 CFR 2.318(a); or (c) if another officer has been
designated to rule on information access issues, with that officer.
H. Review of Grants of Access. A party other than the requester may
challenge an NRC staff determination granting access to SUNSI whose
release would harm that party's interest independent of the proceeding.
Such a challenge must be filed with the Chief Administrative Judge
within 5 days of the notification by the NRC staff of its grant of
access.
If challenges to the NRC staff determinations are filed, these
procedures give way to the normal process for litigating disputes
concerning access to information. The availability of interlocutory
review by the Commission of orders ruling on such NRC staff
determinations (whether granting or denying access) is governed by 10
CFR 2.311.\3\
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\3\ Requesters should note that the filing requirements of the
NRC's E-Filing Rule (72 FR 49139; August 28, 2007) apply to appeals
of NRC staff determinations (because they must be served on a
presiding officer or the Commission, as applicable), but not to the
initial SUNSI request submitted to the NRC staff under these
procedures.
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I. The Commission expects that the NRC staff and presiding officers
(and any other reviewing officers) will consider and resolve requests
for access to SUNSI, and motions for protective orders, in a timely
fashion in order to minimize any unnecessary delays in identifying
those petitioners who have standing and who have propounded contentions
meeting the specificity and basis requirements in 10 CFR Part 2.
Attachment 1 to this Order summarizes the general target schedule for
processing and resolving requests under these procedures.
It is so ordered.
Dated at Rockville, Maryland, this 14th day of January, 2010.
For the Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
Attachment 1--General Target Schedule for Processing and Resolving
Requests for Access to Sensitive Unclassified Non-Safeguards Information
in this Proceeding
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Day Event/activity
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0..................... Publication of Federal Register notice of
hearing and opportunity to petition for leave
to intervene, including order with instructions
for access requests.
10.................... Deadline for submitting requests for access to
Sensitive Unclassified Non-Safeguards
Information (SUNSI) 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.
60.................... Deadline for submitting petition for
intervention containing: (i) Demonstration of
standing; (ii) all contentions whose
formulation does not require access to SUNSI
(+25 Answers to petition for intervention; +7
petitioner/requestor reply).
20.................... Nuclear Regulatory Commission (NRC) staff
informs the requester of the staff's
determination whether the request for access
provides a reasonable basis to believe standing
can be established and shows need 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).
25.................... If NRC staff finds no ``need'' or no likelihood
of standing, the deadline for petitioner/
requester to file a motion seeking a ruling to
reverse the NRC staff's denial of access; NRC
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.
[[Page 3501]]
30.................... Deadline for NRC staff reply to motions to
reverse NRC staff determination(s).
40.................... (Receipt +30) If NRC staff finds standing and
need for SUNSI, deadline for NRC staff to
complete information processing and file motion
for Protective Order and draft Non-Disclosure
Affidavit. Deadline for applicant/licensee to
file Non-Disclosure Agreement for SUNSI.
A..................... If access granted: Issuance of presiding officer
or other designated officer decision on motion
for protective order for access to sensitive
information (including schedule for providing
access and submission of contentions) or
decision reversing a final adverse
determination by the NRC staff.
A + 3................. Deadline for filing executed Non-Disclosure
Affidavits. Access provided to SUNSI consistent
with decision issuing the protective order.
A + 28................ Deadline for submission of contentions whose
development depends upon access to SUNSI.
However, if more than 25 days remain between
the petitioner's receipt of (or access to) the
information and the deadline for filing all
other contentions (as established in the notice
of hearing or opportunity for hearing), the
petitioner may file its SUNSI contentions by
that later deadline.
A + 53................ (Contention receipt +25) Answers to contentions
whose development depends upon access to SUNSI.
A + 60................ (Answer receipt +7) Petitioner/Intervenor reply
to answers.
>A + 60............... Decision on contention admission.
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[FR Doc. 2010-1077 Filed 1-20-10; 8:45 am]
BILLING CODE 7590-01-P