[Federal Register Volume 75, Number 225 (Tuesday, November 23, 2010)]
[Notices]
[Pages 71467-71472]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-29481]
=======================================================================
-----------------------------------------------------------------------
NUCLEAR REGULATORY COMMISSION
[Docket No.: 52-042; NRC-2010-0165]
Exelon Nuclear Texas Holdings, LLC, Early Site Permit Application
for the Victoria County Station Site, Notice of Hearing, Opportunity To
Petition for Leave To Intervene, and Associated Order Imposing
Procedures for Access to Sensitive Unclassified Non-Safeguards
Information and Safeguards Information for Contention Preparation
AGENCY: Nuclear Regulatory Commission (NRC or the Commission).
ACTION: Notice of hearing and opportunity to petition for leave to
intervene.
-----------------------------------------------------------------------
DATES: Petitions for leave to intervene must be filed by January 24,
2011.
FOR FURTHER INFORMATION CONTACT: Janelle B. Jessie, Project Manager,
BWR Projects Branch, Division of New Reactor Licensing, Office of New
Reactors, U.S. Nuclear Regulatory Commission, Washington, DC 20555-
0001. Telephone: 301-415-6775; e-mail: Janelle.Jessie@nrc.gov.
NRC Public Document Room (PDR): The public may examine and have
copied, for a fee, publicly available documents at the NRC PDR, Room
O1-F21, One White Flint North, 11555 Rockville Pike, Rockville,
Maryland.
NRC Agencywide Documents Access and Management System (ADAMS):
Publicly available documents created or received at the NRC are
available electronically at the NRC Electronic Reading Room at http://www.nrc.gov/reading-rm/adams.html. From this page, the public can gain
entry into ADAMS, which provides text and image files of NRC public
documents. If you do not have access to ADAMS or if there are problems
in accessing the documents located in ADAMS, contact the NRC PDR
reference staff at 1-800-397-4209, 301-415-4737, or by e-mail to
pdr.resource@nrc.gov. The application letter dated March 25, 2010, is
available electronically under ADAMS Accession Number ML101030742. The
application is also electronically available for public viewing at
http://www.nrc.gov/reactors/new-reactors/esp/victoria.html. The
application is also available to local residents at the Victoria Public
Library, Victoria County, Texas.
SUPPLEMENTARY INFORMATION:
I. Introduction
Pursuant to the Atomic Energy Act of 1954, as amended (the Act),
and the regulations in Title 10 of the Code of
[[Page 71468]]
Federal Regulations (10 CFR) part 2, ``Rules of Practice for Domestic
Licensing Proceedings and Issuance of Orders,'' 10 CFR part 50,
``Domestic Licensing of Production and Utilization Facilities,'' and 10
CFR part 52, ``Licenses, Certifications, and Approvals for Nuclear
Power Plants,'' notice is hereby given that a hearing will be held, at
a time and place to be set in the future, by the NRC or designated by
the Atomic Safety and Licensing Board (Board). The hearing will
consider the application dated March 25, 2010, filed by Exelon Nuclear
Texas Holdings, LLC, pursuant to Subpart A of 10 CFR part 52, for an
early site permit (ESP). The application, which was supplemented by the
applicant by letters dated May 4, May 6, May 13, May 20, June 15, June
24, and June 28, 2010, requests approval of an ESP for the Victoria
County Station Site to be located in Victoria County, Texas. Notice of
NRC's receipt of the application was published in the Federal Register
on April 28, 2010 (75 FR 22434). The application was accepted for
docketing on June 7, 2010 (75 FR 33653). The docket number established
for this application is 52-042.
The Victoria County Station early site permit application uses
technical information from various certified and proposed designs to
develop a plant parameter envelope for facility characterization
necessary to assess the suitability of the site for any future
construction and operation of a nuclear power plant.
The hearing will be conducted by a Board that will be designated by
the Chief Judge of the Atomic Safety and Licensing Board Panel, or will
be conducted by the Commission. Notice as to the membership of the
Board will be published in the Federal Register at a later date. The
NRC staff will complete a detailed technical review of the application
and will document its findings in a safety evaluation report. The
Commission will refer a copy of the application to the Advisory
Committee on Reactor Safeguards (ACRS) in accordance with 10 CFR 52.87,
``Referral to the ACRS,'' and the ACRS will report on those portions of
the application that concern safety. The NRC staff will also complete
an environmental review of the application and will document its
findings in an environmental impact statement in accordance with the
National Environmental Policy Act of 1969, as amended, and the
Commission's regulations in 10 CFR part 51.
II. Petitions for Leave To Intervene
Requirements for petitions for leave to intervene are found in 10
CFR 2.309, ``Hearing requests, petitions to intervene, requirements for
standing, and contentions.'' Interested persons should consult 10 CFR
part 2, section 2.309, which is available at the NRC PDR, located at
O1-F21, One White Flint North, 11555 Rockville Pike, Rockville,
Maryland 20852 (or call the PDR at 1-800-397-4209 or 301-415-4737). NRC
regulations are also accessible electronically from the NRC Electronic
Reading Room on the NRC Web site at http://www.nrc.gov.
Any person whose interest may be affected by this proceeding and
who desires to participate as a party to this proceeding must file a
written petition for leave to intervene. As required by 10 CFR 2.309, a
petition for leave to intervene shall set forth with particularity the
interest of the petitioner in the proceeding and how that interest may
be affected by the results of the proceeding. The petition must provide
the name, address, and telephone number of the petitioner and
specifically explain the reasons why intervention should be permitted
with particular reference to the following factors: (1) The nature of
the petitioner's right under the Act to be made a party to the
proceeding; (2) the nature and extent of the petitioner's property,
financial, or other interest in the proceeding; and (3) the possible
effect of any order that may be entered in the proceeding on the
petitioner's interest.
A petition for leave to intervene must also include a specification
of the contentions that the petitioner seeks to have litigated in the
hearing. For each contention, the petitioner must provide a specific
statement of the issue of law or fact to be raised or controverted, as
well as a brief explanation of the basis for the contention.
Additionally, the petitioner must demonstrate that the issue raised by
each contention is within the scope of the proceeding and is material
to the findings the NRC must make to support the granting of a combined
license in response to the application. The petition must also include
a concise statement of the alleged facts or expert opinions which
support the position of the petitioner and on which the petitioner
intends to rely at hearing, together with references to the specific
sources and documents on which the petitioner intends to rely. Finally,
the petition must provide sufficient information to show that a genuine
dispute exists with the applicant on a material issue of law or fact,
including references to specific portions of the application that the
petitioner disputes and the supporting reasons for each dispute, or, if
the petitioner believes that the application 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.
Those permitted to intervene become parties to the contested
proceeding, subject to any limitations in the order granting leave to
intervene. The party's participation will be governed by applicable NRC
regulations, policies, and procedures, and may include the opportunity
to present the party's legal and technical views, introduce evidence,
and propose questions to be asked of witnesses. The Board will set the
time and place for any prehearing conferences and evidentiary hearings,
and the appropriate notices will be provided.
Petitions for leave to intervene must be filed no later than
January 24, 2011. 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 Board or a
presiding officer that the petition should be granted and/or the
contentions should be admitted based upon 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 be
submitted to the Commission by January 24, 2011. The petition must be
filed in accordance with the filing instructions in Section III of this
document, and should meet the requirements for petitions for leave to
intervene set forth in this section, except that State 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
its boundaries. The entities listed above may also seek to participate
in a hearing as a nonparty in accordance with 10 CFR 2.315(c).
Any person who does not wish, or is not qualified, to become a
party to this proceeding may request permission to make a limited
appearance pursuant to the provisions of 10 CFR 2.315(a). A person
making a limited appearance may make an oral or written statement of
position on the issues, but may not otherwise participate in the
proceeding. The Board will determine when it will accept limited
appearance statements, and advise the public of such opportunities.
[[Page 71469]]
III. Electronic Submissions (E-Filing)
All documents filed in NRC adjudicatory proceedings, including a
petition for leave to intervene, any motion or other document filed in
the proceeding prior to the submission of a 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 petitioner should
contact the Office of the Secretary by e-mail at
Hearing.Docket@nrc.gov, 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 the NRC public Web site at http://www.nrc.gov/site-help/e-submittals/apply-certificates.html. System requirements for accessing
the E-Submittal server are detailed in the NRC ``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 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 online, Web-based submission form. In order to
serve documents through the Electronic Information Exchange System,
users will be required to install a Web browser plug-in from the NRC
Web site. Further information on the Web-based submission form,
including the installation of the Web browser plug-in, is available on
the NRC 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 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 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 petition to intervene is filed so that
they can obtain access to the document via the E-Filing system.
A person filing electronically using the NRC 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
MSHD.Resource@nrc.gov, 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 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:
Rulemakings and Adjudications Staff; or (2) courier, express mail, or
expedited delivery service to the Office of the Secretary, Sixteenth
Floor, One White Flint North, 11555 Rockville Pike, Rockville,
Maryland, 20852, Attention: Rulemaking and Adjudications Staff.
Participants filing a document in this manner are responsible for
serving the document on all other participants. Filing is considered
complete by first-class mail as of the time of deposit in the mail, or
by courier, express mail, or expedited delivery service upon depositing
the document with the provider of the service. A presiding officer,
having granted an exemption request from using E-Filing, may require a
participant or party to use E-Filing if the presiding officer
subsequently determines that the reason for granting the exemption from
use of E-Filing no longer exists.
Documents submitted in adjudicatory proceedings will appear in the
NRC 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, Board, 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.
As noted in Section II above, petitions for leave to intervene must
be filed no later than January 24, 2011. Non-timely filings will not be
entertained absent a determination by the presiding officer that the
petition or request should be granted or the contentions should be
admitted, based on a balancing of the factors specified in 10 CFR
2.309(c)(1)(i)-(viii).
Any person who files a motion pursuant to 10 CFR 2.323 must consult
with counsel for the applicant and counsel for the NRC staff that are
listed below. Counsel for the applicant is J. Bradley Fewell, 630-657-
3769, Bradley.Fewell@exeloncorp.com and Steven P. Frantz, 202-739-5460,
sfrantz@morganlewis.com. Counsel for the NRC staff in this proceeding
is Anthony Wilson, 301-415-3699, Anthony.Wilson@nrc.gov.
[[Page 71470]]
Order Imposing Procedures for Access to Sensitive Unclassified Non-
Safeguards Information and 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 information (including Sensitive Unclassified Non-
Safeguards Information (SUNSI) and Safeguards Information (SGI)).
Requirements for access to SGI are primarily set forth in 10 CFR Parts
2 and 73. Nothing in this Order is intended to conflict with the SGI
regulations.
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 or SGI is necessary to respond to this notice
may request access to SUNSI or SGI. 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 or SGI 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 requestor shall submit a letter requesting permission to
access SUNSI, SGI, or both 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 Hearing.Docket@nrc.gov and
OGCmailcenter@nrc.gov, respectively.\1\ The request must include the
following information:
---------------------------------------------------------------------------
\1\ While a request for hearing or petition to intervene in this
proceeding must comply with the filing requirements of the NRC ``E
Filing Rule,'' the initial request to access SUNSI and/or SGI under
these procedures should be submitted as described in this paragraph.
---------------------------------------------------------------------------
(1) A description of the licensing action with a citation to this
Federal Register notice;
(2) The name and address of the potential party and a description
of the potential party's particularized interest that could be harmed
by the action identified in C.(1) of this Order;
(3) If the request is for SUNSI, the identity of the individual or
entity requesting access to SUNSI and the requestor's basis for the
need for the information in order to meaningfully participate in this
adjudicatory proceeding. In particular, the request must explain why
publicly available versions of the information requested would not be
sufficient to provide the basis and specificity for a proffered
contention;
(4) If the request is for SGI, the identity of each individual who
would have access to SGI if the request is granted, including the
identity of any expert, consultant, or assistant who will aid the
requestor in evaluating the SGI. In addition, the request must contain
the following information:
(a) A statement that explains each individual's ``need to know''
the SGI, as required by 10 CFR 73.2 and 10 CFR 73.22(b)(1). Consistent
with the definition of ``need to know'' as stated in 10 CFR 73.2, the
statement must explain:
(i) Specifically why the requestor believes that the information is
necessary to enable the requestor to proffer and/or adjudicate a
specific contention in this proceeding; \2\ and
(ii) The technical competence (demonstrable knowledge, skill,
training or education) of the requestor to effectively utilize the
requested SGI 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 satisfies these criteria.
---------------------------------------------------------------------------
\2\ Broad SGI requests under these procedures are 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
requestor's need to know than ordinarily would be applied in
connection with an already-admitted contention or non-adjudicatory
access to SGI.
---------------------------------------------------------------------------
(b) A completed Form SF-85, ``Questionnaire for Non-Sensitive
Positions,'' for each individual who would have access to SGI. The
completed Form SF-85 will be used by the Office of Administration to
conduct the background check required for access to SGI, as required by
10 CFR Part 2, Subpart G and 10 CFR 73.22(b)(2), to determine the
requestor's trustworthiness and reliability. For security reasons, Form
SF-85 can only be submitted electronically through the electronic
questionnaire for investigations processing (e-QIP) Web site, a secure
Web site that is owned and operated by the Office of Personnel
Management. To obtain online access to the form, the requestor should
contact the NRC Office of Administration at 301-492-3524.\3\
---------------------------------------------------------------------------
\3\ The requestor 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 requestor
usually should be able to obtain access to the online form within
one business day.
---------------------------------------------------------------------------
(c) A completed Form FD-258 (fingerprint card), signed in original
ink, and submitted in accordance with 10 CFR 73.57(d). Copies of Form
FD-258 may be obtained by writing the Office of Information Services,
U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, by
calling 301-415-7232 or 301-492-7311, or by e-mail to
Forms.Resource@nrc.gov. The fingerprint card will be used to satisfy
the requirements of 10 CFR Part 2, 10 CFR 73.22(b)(1), and Section 149
of the Atomic Energy Act of 1954, as amended, which mandates that all
persons with access to SGI must be fingerprinted for an FBI
identification and criminal history records check;
(d) A check or money order payable in the amount of $200.00 \4\ to
the U.S. Nuclear Regulatory Commission for each individual for whom the
request for access has been submitted, and
---------------------------------------------------------------------------
\4\ This fee is subject to change pursuant to the Office of
Personnel Management's adjustable billing rates.
---------------------------------------------------------------------------
(e) If the requestor or any individual who will have access to SGI
believes they belong to one or more of the categories of individuals
that are exempt from the criminal history records check and background
check requirements in 10 CFR 73.59, the requestor should also provide a
statement identifying which exemption the requestor is invoking and
explaining the requestor's basis for believing that the exemption
applies. While processing the request, the Office of Administration,
Personnel Security Branch, will make a final determination whether the
claimed exemption applies. Alternatively, the requestor may contact the
Office of Administration for an evaluation of their exemption status
prior to submitting their request. Persons who are exempt from the
background check are not required to complete the SF-85 or Form FD-258;
however, all other requirements for access to SGI, including the ``need
to know,'' are still applicable.
Note: Copies of documents and materials required by paragraphs
C.(4)(b), (c), and (d) of this Order must be sent to the following
address: Office of Administration, U.S. Nuclear Regulatory
Commission, Personnel Security Branch, Mail Stop TWB-05-B32M,
Washington, DC 20555-0001. These documents and materials should not
be included with the request letter to the Office of the Secretary,
but the request letter should
[[Page 71471]]
state that the forms and fees have been submitted as required above.
D. To avoid delays in processing requests for access to SGI, the
requestor should review all submitted materials for completeness and
accuracy (including legibility) before submitting them to the NRC. The
NRC will return incomplete packages to the sender without processing.
E. Based on an evaluation of the information submitted under
paragraphs C.(3) or C.(4) above, as applicable, 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 or ``need to know'' the SGI requested.
F. For requests for access to SUNSI, if the NRC staff determines
that the requestor satisfies both E.(1) and E.(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 \5\ setting
forth terms and conditions to prevent the unauthorized or inadvertent
disclosure of SUNSI by each individual who will be granted access to
SUNSI.
---------------------------------------------------------------------------
\5\ 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.
---------------------------------------------------------------------------
G. For requests for access to SGI, if the NRC staff determines that
the requestor has satisfied both E.(1) and E.(2) above, the Office of
Administration will then determine, based upon completion of the
background check, whether the proposed recipient is trustworthy and
reliable, as required for access to SGI by 10 CFR 73.22(b). If the
Office of Administration determines that the individual or individuals
are trustworthy and reliable, the NRC will promptly notify the
requestor in writing. The notification will provide the names of
approved individuals as well as the conditions under which the SGI will
be provided. Those conditions may include, but not be limited to, the
signing of a Non-Disclosure Agreement or Affidavit, or Protective Order
\6\ by each individual who will be granted access to SGI.
---------------------------------------------------------------------------
\6\ Any motion for Protective Order or draft Non-Disclosure
Affidavit or Agreement for SGI must be filed with the presiding
officer or the Chief Administrative Judge if the presiding officer
has not yet been designated, within 180 days of the deadline for the
receipt of the written access request.
---------------------------------------------------------------------------
H. Release and Storage of SGI. Prior to providing SGI to the
requestor, the NRC staff will conduct (as necessary) an inspection to
confirm that the recipient's information protection system is
sufficient to satisfy the requirements of 10 CFR 73.22. Alternatively,
recipients may opt to view SGI at an approved SGI storage location
rather than establish their own SGI protection program to meet SGI
protection requirements.
I. Filing of Contentions. Any contentions in these proceedings that
are based upon the information received as a result of the request made
for SUNSI or SGI 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 or SGI contentions by that
later deadline.
J. Review of Denials of Access.
(1) If the request for access to SUNSI or SGI is denied by the NRC
staff either after a determination on standing and requisite need, 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) Before the Office of Administration makes an adverse
determination regarding the proposed recipient(s) trustworthiness and
reliability for access to SGI, the Office of Administration, in
accordance with 10 CFR 2.705(c)(3)(iii), must provide the proposed
recipient(s) any records that were considered in the trustworthiness
and reliability determination, including those required to be provided
under 10 CFR 73.57(e)(1), so that the proposed recipient(s) have an
opportunity to correct or explain the record.
(3) The requestor may challenge the NRC staff's adverse
determination with respect to access to SUNSI 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.
(4) The requestor may challenge the NRC staff's or Office of
Administration's adverse determination with respect to access to SGI by
filing a request for review in accordance with 10 CFR 2.705(c)(3)(iv).
Further appeals of decisions under this paragraph must be made pursuant
to 10 CFR 2.311.
K. Review of Grants of Access. A party other than the requestor may
challenge an NRC staff determination granting access to SUNSI or SGI
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.\7\
---------------------------------------------------------------------------
\7\ Requestors should note that the filing requirements of the
NRC 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/SGI request submitted to the NRC staff under these procedures.
---------------------------------------------------------------------------
L. The Commission expects that the NRC staff and presiding officers
(and any other reviewing officers) will consider and resolve requests
for access to SUNSI 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.
It is so ordered.
Dated at Rockville, Maryland, this 16th day of November 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 and Safeguards Information in This Proceeding
[[Page 71472]]
------------------------------------------------------------------------
Day Event/Activity
------------------------------------------------------------------------
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[dash]safeguards information
(SUNSI) and/or safeguards
information (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 the
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 requestor/
petitioner reply).
20................................ Nuclear Regulatory Commission (NRC)
staff informs the requestor 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 to
know,'' or no likelihood of
standing, the deadline for
requestor/petitioner 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 to SGI, 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 trustworthiness or
reliability determination either
before the presiding officer or
another designated officer under 10
CFR 2.705(c)(3)(iv).
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 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/
Intervener reply to answers.
>A + 60........................... Decision on contention admission.
------------------------------------------------------------------------
[FR Doc. 2010-29481 Filed 11-22-10; 8:45 am]
BILLING CODE 7590-01-P