[Federal Register Volume 69, Number 200 (Monday, October 18, 2004)]
[Notices]
[Pages 61411-61416]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-23238]


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NUCLEAR REGULATORY COMMISSION

[Docket No. 70-7004; CLI-04-30]


USEC, Inc. (American Centrifuge Plant); Notice of Receipt of 
Application for License; Notice of Availability of Applicant's 
Environmental Report; Notice of Consideration of Issuance of License; 
and Notice of Hearing and Commission Order

Commissioners: Nils J. Diaz, Chairman, Edward McGaffigan, Jr. and 
Jeffrey S. Merrifield.

I. Receipt of Application and Availability of Documents

    Notice is hereby given that the U.S. Nuclear Regulatory Commission 
(NRC or the Commission) received on August 23, 2004, an application, 
safety analysis report, and environmental report from USEC, Inc. 
(hereinafter USEC), for a license to possess and use source, byproduct, 
and special nuclear material and to enrich natural uranium to a maximum 
of 10 percent U-235 by the gas centrifuge process. The plant, to be 
known as the American Centrifuge Plant, would be located in Piketon, 
Ohio. USEC, Inc. is a Delaware corporation.
    Copies of USEC's application, safety analysis report, and 
environmental report (except for portions thereof subject to 
withholding from public inspection in accordance with 10 CFR 2.390, 
Availability of Public Records) are available for public inspection at 
the Commission's Public Document Room (PDR) at One White Flint North, 
11555 Rockville Pike, Rockville, Maryland 20852. These documents are 
also available for review and copying using any of the following 
methods: (1) Enter the NRC's Gas Centrifuge Enrichment Facility 
Licensing Web site at http://www.nrc.gov/materials/fuel-cycle-fac/gas-centrifuge.html#correspondence; (2) enter the NRC's Agency wide 
Document Access and Management System (ADAMS) at http://www.nrc.gov/reading-rm/adams.html, where the accession numbers for USEC's 
application (including USEC's safety analysis report and USEC's 
environmental report) is ML042800551 (3) contact the PDR by calling 
(800) 397-4209, faxing a request to (301) 415-3548, or sending a 
request by electronic mail to <a href="/cdn-cgi/l/email-protection#13637761537d61703d747c65"><span class="__cf_email__" data-cfemail="3c4c584e7c524e5f125b534a">[email protected]</span></a>. Hard copies of the documents 
are available from the PDR for a fee.
    The NRC has now accepted USEC's application for docketing and 
accordingly is providing this notice of hearing and notice of 
opportunity to intervene on USEC's application for a license to 
construct and operate a centrifuge enrichment facility. Pursuant to the 
Atomic Energy Act of 1954, as amended, (Act) the NRC staff will prepare 
a safety evaluation report (SER) after reviewing the application and 
making findings concerning the public health and safety and common 
defense and security. In addition, pursuant to the National 
Environmental Policy Act of 1969 (NEPA) and the Commission's 
regulations in 10 CFR part 51, NRC will complete an environmental 
evaluation and prepare an environmental impact statement (EIS) before 
the hearing on the issuance of a license is completed. The preparation 
of the EIS will be the subject of a separate notice in the Federal 
Register.
    When available, the NRC staff's safety evaluation and its EIS 
(except for portions thereof subject to withholding from public 
inspection in accordance with 10 CFR 2.390) will also be placed in the 
PDR and in ADAMS. Copies of correspondence between the NRC and USEC, 
and transcripts of prehearing conferences and hearings (except for 
portions thereof subject to withholding from public inspection in 
accordance with 10 CFR 2.390) similarly will be made available to the 
public.
    If following the hearing, the Commission is satisfied that USEC has 
complied with the Commission's regulations and the requirements of this 
Notice and Commission Order and the Commission finds that the 
application satisfies the applicable standards set forth in 10 CFR 
30.33, 40.32, and 70.23, a single license will be issued authorizing 
(1) the receipt, possession, use, delivery, and transfer of byproduct 
(e.g., calibration sources), source and special nuclear material in the 
American Centrifuge Plant; and (2) the construction and operation of 
the American Centrifuge Plant. Prior to commencement of operations of 
the American Centrifuge Plant, if it is licensed, in accordance with 
section 193(c) of the Act and 10 CFR 70.32(k), NRC will verify through 
inspection that the facility has been constructed in accordance with 
the requirements of the license for such construction and operation. 
The inspection findings will be published in the Federal Register.

II. Notice of Hearing

    A. Pursuant to 10 CFR 70.23a and section 193 of the Act, as amended 
by the Solar, Wind, Waste, and Geothermal Power Production Incentives 
Act of 1990 (Pub. L. 101-575), a hearing will be conducted according to 
the rules of procedure in 10 CFR part 2, Subparts A, C, G, and to the 
extent that classified information becomes involved, Subpart I. The 
hearing will be held under the authority of sections 53, 63, 189, 191, 
and 193 of the Act. The applicant and NRC staff shall be parties to the 
proceeding.
    B. Pursuant to 10 CFR part 2, subpart C, the hearing shall be 
conducted by an Atomic Safety and Licensing Board (Board) appointed by 
the Chief Administrative Judge of the Atomic Safety and Licensing Board 
Panel. Notice as to the membership of the Board will be published in 
the Federal Register at a later date.
    C. The matters of fact and law to be considered are whether the 
application satisfies the standards set forth in this Notice and 
Commission Order and the applicable standards in 10 CFR 30.33, 40.32, 
and 70.23, and whether the requirements of 10 CFR part 51 have been 
met.
    D. If this proceeding is not a contested proceeding, as defined by 
10 CFR 2.4, the Board will determine the following, without conducting 
a de novo evaluation of the application: (1) Whether the application 
and record of the proceeding contain sufficient information and whether 
the NRC staff's review of the application has been adequate to support 
findings to be made by the Director of the Office of Nuclear Materials 
Safety and Safeguards, with respect to the matters set forth in 
paragraph C of this section, and (2) whether the review conducted by 
the NRC staff pursuant to 10 CFR part 51 has been adequate.
    E. Regardless of whether the proceeding is contested or 
uncontested, the Board will, in its initial decision, in accordance 
with subpart A of 10 CFR part 51: Determine whether the requirements of 
sections 102(2)(A), (C), and (E) of NEPA and subpart A of 10 CFR part 
51 have been complied with in the proceeding; independently consider

[[Page 61412]]

the final balance among conflicting factors contained in the record of 
proceeding with a view to determining the appropriate action to be 
taken; and determine whether a license should be issued, denied, or 
conditioned to protect the environment.
    F. If the proceeding becomes a contested proceeding, the Board 
shall make findings of fact and conclusions of law on admitted 
contentions. With respect to matters set forth in paragraph C of this 
section but not covered by admitted contentions, the Board will make 
the determinations set forth in paragraph D without conducting a de 
novo evaluation of the application.
    G. By December 17, 2004, any person whose interest may be affected 
by this proceeding and who wishes to participate as a party in the 
proceeding must file a written petition for leave to intervene. 
Petitions for leave to intervene shall be filed in accordance with the 
provisions of 10 CFR 2.309. Interested persons should consult 10 CFR 
part 2, section 2.309, which is available at the NRC's PDR, located at 
One White Flint North, 11555 Rockville Pike (first floor), Rockville, 
MD (or call the PDR at (800) 397-4209 or (301) 415-4737). NRC 
regulations are also accessible electronically from the NRC's 
Electronic Reading Room on the NRC Web site at http://www.nrc.gov. If a 
petition for leave to intervene is filed by the above date, the 
Commission will issue an order determining standing and refer petitions 
from persons with the requisite standing to the Board for further 
processing in the proceeding.
    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 license 
in response to USEC's 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. 
Each contention must be one that, if proven, would entitle the 
petitioner to relief.
    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 a cross-examination plan for cross-examination of witnesses, 
consistent with NRC regulations, policies, and procedures. The Board 
will set the time and place for any prehearing conferences and 
evidentiary hearings, and the respective notices will be published in 
the Federal Register.
    A petition for leave to intervene and proffered contentions must be 
filed 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; (2) courier, 
express mail, and expedited delivery services: Office of the Secretary, 
Sixteenth Floor, One White Flint North, 11555 Rockville Pike, 
Rockville, Maryland 20852, Attention: Rulemaking and Adjudications 
Staff; (3) e-mail addressed to the Office of the Secretary, U.S. 
Nuclear Regulatory Commission, <a href="/cdn-cgi/l/email-protection#ade5e8ecffe4e3eae9e2eee6e8f9edc3dfce83cac2db"><span class="__cf_email__" data-cfemail="064e4347544f48414249454d43524668746528616970">[email protected]</span></a>; or (4) facsimile 
transmission addressed to the Office of the Secretary, U.S. Nuclear 
Regulatory Commission, Washington, DC, Attention: Rulemaking and 
Adjudications Staff at (301) 415-1101, verification number is (301) 
415-1966. A copy of the petition for leave to intervene and proffered 
contentions should also be sent to the Office of the General Counsel, 
U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, and it 
is requested that copies be transmitted either by means of facsimile 
transmission to (301) 415-3725 or by e-mail to <a href="/cdn-cgi/l/email-protection#f0bfb7b3bd91999cb3959e849582b09e8293de979f86"><span class="__cf_email__" data-cfemail="105f57535d71797c53757e647562507e62733e777f66">[email protected]</span></a>. A 
copy of the petition for leave to intervene and proffered contentions 
should also be sent to Donald J. Silverman, Esq., Morgan, Lewis & 
Bockius, 1111 Pennsylvania Avenue, NW., Washington, DC 20004, the 
attorney for the applicant.
    Non-timely filings of petitions for leave to intervene, amended 
petitions, and supplemental petitions will not be entertained absent a 
determination by the Commission or the Board that the petition should 
be granted, based upon a balancing of the factors specified in 10 CFR 
2.309(c)(1)(i)-(viii).
    H. A State, county, municipality, federally-recognized Indian 
Tribe, or agencies thereof, may submit a petition to the Commission to 
participate as an interested entity 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 by December 17, 2004. The petition must be filed in 
accordance with the filing instructions in paragraph G, above, for 
petitions submitted under 10 CFR 2.309, 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 could also seek to 
participate in a hearing as a nonparty pursuant to 10 CFR 2.315(c).
    I. 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. A limited appearance may be made at any session of the 
hearing or at any prehearing conference, subject to such limits and 
conditions as may be imposed by the Board. Persons desiring to make a 
limited appearance are requested to inform the Secretary of the 
Commission by December 17, 2004.

[[Page 61413]]

III. Commission Guidance

A. Presiding Officer Determination of Contentions

    The presiding officer shall issue a decision on the admissibility 
of contentions no later than sixty (60) days after the petitions and 
contentions are referred to the Board.

B. Novel Legal Issues

    If rulings on petitions, on admissibility of contentions or the 
admitted contentions themselves, raise novel legal or policy questions, 
the Commission will provide early guidance and direction on the 
treatment and resolution of such issues. Accordingly, the Commission 
directs the Board to promptly certify to the Commission in accordance 
with 10 CFR 2.319(l) and 2.323(f) all novel legal or policy issues that 
would benefit from early Commission consideration should such issues 
arise in this proceeding.

C. Discovery Management

    (1) All parties, except the NRC staff, shall make the mandatory 
disclosures required by 10 CFR 2.704 within forty-five (45) days of the 
issuance of the order admitting that contention.
    (2) The presiding officer, consistent with fairness to all parties, 
should narrow the issues requiring discovery and limit discovery to no 
more than one round for admitted contentions.
    (3) All discovery against the Staff shall be governed by 10 CFR 
2.336(b) and 2.709. The Staff shall comply with 10 CFR 2.336(b) no 
later than 30 days after the Board order admitting contentions and 
shall update the information at the same time as the issuance of the 
SER or the Final Environmental Impact Statement (FEIS). Discovery under 
10 CFR 2.709 shall not commence until the issuance of the particular 
document, i.e., SER or EIS, unless the Board, in its discretion, finds 
that commencing discovery against the Staff on safety issues before the 
SER is issued, or on environmental issues before the FEIS is issued 
will expedite the hearing without adversely impacting the Staff's 
ability to complete its evaluation in a timely manner.
    (4) No later than 30 days before the commencement of the hearing at 
which an issue is to be presented, all parties other than the Staff 
shall make the pretrial disclosures required by 10 CFR 2.704(c).

D. Hearing Schedule

    In the interest of providing a fair hearing, avoiding unnecessary 
delays in NRC's review and hearing process, and producing an informed 
adjudicatory record that supports the licensing determination to be 
made in this proceeding, the Commission expects that both the Board and 
NRC staff, as well as the applicant and other parties to this 
proceeding, will follow the applicable requirements contained in 10 CFR 
part 2 and guidance in the Commission's Statement of Policy on Conduct 
of Adjudicatory Proceedings, CLI-98-12, 48 NRC 18 (1998) [63 FR 41872 
(August 5, 1998)] to the extent that such guidance is not inconsistent 
with specific guidance in this Order. The guidance in the Statement of 
Policy on Conduct of Adjudicatory Proceedings is intended to improve 
the management and the timely completion of the proceeding and 
addresses hearing schedules, parties' obligations, contentions and 
discovery management. In addition, the Commission is providing the 
following direction for this proceeding:
    (1) The Commission directs the Board to set a schedule for the 
hearing in this proceeding consistent with this order that establishes 
as a goal the issuance of a final Commission decision on the pending 
application within two-and-one-half years (30 months) from the date 
that the application was received. Formal discovery against the Staff 
shall be suspended until after the Staff completes its final SER and 
EIS in accordance with the direction provided in paragraph C.(3) above.
    (2) The evidentiary hearing with respect to issues should commence 
promptly after completion of the final Staff documents (SER or EIS) 
unless the Board, in its discretion, finds that starting the hearing 
with respect to one or more safety issues prior to issuance of the 
final SER\1\ (or one or more environmental contentions directed to the 
applicant's Environmental Report) will expedite the proceeding without 
adversely impacting the Staff's ability to complete its evaluations in 
a timely manner.
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    \1\ The Commission believes that, in the appropriate 
circumstances, allowing discovery or an evidentiary hearing with 
respect to safety-related issues to proceed before the final SER is 
issued will serve to further the Commission's objective, as 
reflected in the Statement of Policy on Conduct of Adjudicatory 
Proceedings, CLI-98-12, supra, to ensure a fair, prompt, and 
efficient resolution of contested issues. For example, it may be 
appropriate for the Board to permit discovery against the staff and/
or the commencement of an evidentiary hearing with respect to safety 
issues prior to the issuance of the final SER in cases where the 
applicant has responded to the Staff's ``open items'' and there is 
an appreciable lag time until the issuance of the final SER, or in 
cases where the initial SER identifies only a few open items.
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    (3) The Commission also believes that issuing a decision on the 
pending application within about two-and-one-half years may be 
reasonably achieved under the rules of practice contained in 10 CFR 
part 2 and the enhancements directed by this order. We do not expect 
the Board to sacrifice fairness and sound decision-making to expedite 
any hearing granted on this application. We do expect the Board to use 
the techniques specified in this order and in the Commission's policy 
statement on the conduct of adjudicatory proceedings (CLI-98-12, supra) 
to ensure prompt and efficient resolution of contested issues. See also 
Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8, 13 
NRC 452 (1981).
    (4) If this is a contested proceeding, the Board should adopt the 
following milestones, in developing a schedule, for conclusion of 
significant steps in the adjudicatory proceeding.\2\
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    \2\ This schedule assumes that the SER and FEIS are issued 
essentially at the same time. If these documents are not to be 
issued very close in time, the Board should adopt separate schedules 
but concurrently running for the safety and environmental reviews 
consistent with the timeframes herein for each document.

 
 
 
Within 10 days of Commission's order     Persons found to have standing
 determining standing.                    or entities participating
                                          under 10 CFR 2.309(d) may
                                          submit a motion for order
                                          reconsideration (see below, at
                                          Section IV.B).*
Within 20 days of Commission's order     Persons found to have standing
 determining standing.                    or entities participating
                                          under 10 CFR 2.309(d) may
                                          respond to any motion for
                                          reconsideration.
Within 60 days of Commission's order     ASLB decision on admissibility
 determining standing and referring       of contentions.
 petitions and contentions to the ASLB.
Within 30 days of the ASLB decision      Staff prepares hearing file.
 determining admission of contentions.
Within 90 days of the ASLB decision      Completion of discovery on
 determining admission of contentions.    admitted contentions, except
                                          against the Staff (including
                                          contentions on environmental
                                          issues arising under NEPA).

[[Page 61414]]

 
Within 110 days of the ASLB decision     Deadline for summary
 determining admission of contentions.    disposition motions on
                                          admitted contentions.**
Within 150 days of the ASLB decision     ASLB decision on summary
 determining admission of contentions.    disposition motions on
                                          admitted contentions.
Date of issuance of final SER/EIS......  Staff updates hearing file.
Within 20 days of the issuance of the    Motions to amend contentions;
 final SER/EIS.                           motions for late-filed
                                          contentions.
Within 40 days of the issuance of the    Completion of answers and
 final SER/EIS.                           replies to motions for amended
                                          and late-filed contentions.
Within 50 days of the issuance of the    ASLB decision on admissibility
 final SER/EIS.                           of late-filed contentions;
                                          deadline for summary
                                          disposition motions on
                                          remaining admitted
                                          contentions.***
Within 80 days of the issuance of the    Completion of discovery on late-
 final SER/EIS.                           filed contentions; ASLB
                                          decision on summary
                                          disposition motions on
                                          remaining contentions.
Within 90 days of the issuance of the    Direct testimony filed on
 final SER/EIS.                           remaining contentions and any
                                          amended or admitted late-filed
                                          contentions.
Within 100 days of the issuance of the   Cross-examination plans filed
 final SER/EIS.                           on remaining contentions and
                                          any amended or admitted late-
                                          filed contentions.
Within 105 days of the issuance of the   Evidentiary hearing begins on
 final SER/EIS.                           remaining contentions and any
                                          amended or admitted late-filed
                                          contentions.
Within 135 days of the issuance of the   Completions of evidentiary
 final SER/EIS.                           hearing on remaining
                                          contentions and any amended or
                                          admitted late-filed of final
                                          contentions.
Within 180 days of the issuance of the   Completion of findings and
 final SER/EIS.                           replies.
Within 240 days of the issuance of the   ASLB's initial decision.
 final SER/EIS.
 
* Motions for reconsideration do not stay this schedule.
** The schedule presumes that a prehearing conference order would
  establish the deadline for filing of summary disposition motions 20
  days after close of discovery, consistent with 10 CFR 2.710(a),
  answers to be filed 10 days after filing of any motion, replies to be
  filed 10 days after any answer, and the Board to issue a decision on
  any summary disposition motion 20 days thereafter.
*** No summary disposition motions on late-filed contentions are
  contemplated.

    To meet these milestones, the Board should direct the participants 
to serve all filings by electronic mail (in order to be considered 
timely, such filings must be received by the Board and parties no later 
than midnight eastern time on the date due, unless otherwise designated 
by the Board), followed by conforming hard copies that may be sent by 
regular mail. If participants do not have access to electronic mail, 
the Board should adopt other expedited methods of service, such as 
express mail, which would ensure receipt on the due date (``in-hand''). 
If pleadings are filed by electronic mail, or other expedited methods 
of service which would ensure receipt on the due date, the additional 
period provided in our regulations for responding to filings served by 
first-class mail or express delivery shall not be applicable. See 10 
CFR 2.306.
    In addition, to avoid unnecessary delays in the proceeding, the 
Board should not grant requests for extensions of time absent 
unavoidable and extreme circumstances. Although summary disposition 
motions are included in the schedule above, the Board shall not 
entertain motions for summary disposition under 10 CFR 2.710, unless 
the Board finds that such motions are likely to expedite the 
proceeding. Unless otherwise justified, the Board shall provide for the 
simultaneous filing of answers to proposed contentions, responsive 
pleadings, proposed findings of fact, and other similar submittals.
    (5) Parties are obligated in their filings before the Board and the 
Commission to ensure that their arguments and assertions are supported 
by appropriate and accurate references to legal authority and factual 
basis, including, as appropriate, citation to the record. Failure to do 
so may result in material being stricken from the record or, in extreme 
circumstances, in a party being dismissed from the proceeding.
    (6) The Commission directs the Board to inform the Commission 
promptly, in writing, if the Board determines that any single milestone 
could be missed by more than 30 days. The Board must include an 
explanation of why the milestone cannot be met and the measures the 
Board will take to mitigate the failure to achieve the milestone and 
restore the proceeding to the overall schedule.

E. Commission Oversight

    As in any proceeding, the Commission retains its inherent 
supervisory authority over the proceeding to provide additional 
guidance to the Board and participants and to resolve any matter in 
controversy itself.

IV. Applicable Requirements

    A. The Commission will license and regulate byproduct, source, and 
special nuclear material at the American Centrifuge Plant in accordance 
with the Atomic Energy Act of 1954, as amended. Section 274c.(1) of the 
Act was amended by Public Law 102-486 (October 24, 1992) to require the 
Commission to retain authority and responsibility for the regulation of 
uranium enrichment facilities. Therefore, in compliance with law, the 
Commission will be the sole licensing and regulatory authority with 
respect to byproduct, source, and special nuclear material for the 
American Centrifuge Plant, and with respect to the control and use of 
any equipment or device in connection therewith.
    Many rules and regulations in 10 CFR chapter I are applicable to 
the licensing of a person to receive, possess, use, transfer, deliver, 
and process byproduct, source and special nuclear material in the 
quantities that would be possessed at the American Centrifuge Plant. 
These include 10 CFR parts 19, 20, 21, 30, 40, 51, 70, 71, 73, 74, 95, 
140, 170, and 171 for the licensing and regulation of byproduct, 
source, and special nuclear material, including requirements for 
notices to workers, reporting of defects, radiation protection, waste 
disposal, decommissioning funding, and insurance.
    With respect to these regulations, the Commission notes that this 
is the third proceeding involving the licensing of an enrichment 
facility. The Commission issued a number of decisions in an earlier 
proceeding regarding a proposed site in Homer, Louisiana. These final 
decisions, Louisiana Energy Services (Clairborne Enrichment Center), 
CLI-92-7, 35 NRC 93 (1992); Louisiana Energy Services (Clairborne 
Enrichment Center), CLI-97-15, 46 NRC 294 (1997); and Louisiana Energy 
Services (Clairborne Enrichment Center), CLI-98-3, 47 NRC 77 (1998); 
resolve a number of issues concerning uranium enrichment licensing and 
may be relied upon as precedent.
    Consistent with the Act, and the Commission's regulations, the

[[Page 61415]]

Commission is providing the following direction for licensing uranium 
enrichment facilities:
    1. Environmental Issues
    (a) General: 10 CFR part 51 governs the preparation of an 
environmental report and an EIS for a materials license. USEC's 
environmental report and the NRC staff's associated EIS are to include 
a statement on the alternatives to the proposed action, including a 
discussion of the no-action alternative.
    (b) Treatment of depleted uranium hexafluoride tails: As to the 
treatment of the disposition of depleted uranium hexafluoride tails 
(depleted tails) in these environmental documents, unless USEC 
demonstrates a use for uranium in the depleted tails as a potential 
resource, the depleted tails will be considered waste. An approach for 
disposition of tails that is consistent with section 3113 of the USEC 
Privatization Act constitutes a ``plausible strategy'' for disposition 
of the USEC depleted tails. The Commission is considering matters of 
law applicable to disposition of tails which may be dispositive of 
matters arising in a USEC proceeding. See Louisiana Energy Services 
(National Enrichment Facility), CLI-04-25, slip op. at 5 (Aug. 18, 
2004). The NRC staff may consider the DOE EIS in preparing the staff's 
EIS. Alternatives for the disposition of depleted uranium tails will 
need to be addressed in these documents. As part of the licensing 
process, USEC must also address the health, safety, and security issues 
associated with the storage of depleted uranium tails on site pending 
removal of the tails from the site for disposal or DOE dispositioning.
    2. Financial Qualifications
    Review of financial qualifications for enrichment facility license 
applications is governed by 10 CFR part 70. In Louisiana Energy 
Services (Clairborne Enrichment Center), CLI-97-15, 46 NRC 294, 309 
(1997) the Commission held that the 10 CFR part 70 financial criteria, 
10 CFR 70.22(a)(8) and 70.23(a)(5), could be met by conditioning the 
LES license to require funding commitments to be in place prior to 
construction and operation. The specific license condition approved in 
that proceeding, which addressed a minimum equity contribution of 30% 
from the parents and affiliates of LES partners prior to construction 
of the associated capacity and having in place long term enrichment 
contracts with prices sufficient to cover both construction and 
operating costs, including a return on investment, for the entire term 
of the contracts prior to constructing or operating the facility is one 
way to satisfy the requirements of 10 CFR part 70.
    3. Antitrust Review
    The USEC enrichment facility is subject to sections 53 and 63 of 
the Act, and is not a production and utilization facility licensed 
under section 103. Consequently, the NRC does not have antitrust 
responsibilities for USEC similar to the antitrust responsibilities 
under section 105 of the Act. The NRC will not entertain or consider 
antitrust issues in connection with the USEC application in this 
proceeding.
    4. Foreign Ownership
    Section 193(f) of the Act addresses foreign ownership, control and 
domination of enrichment facilities with regard to USEC and its 
successors. The requirements of section 193(f) are incorporated in 10 
CFR 70.40.
    5. Creditor Requirements
    Pursuant to section 184 of the Act, the creditor regulations in 10 
CFR 50.81 shall apply to the creation of creditor interests in 
equipment, devices, or important parts thereof, capable of separating 
the isotopes of uranium or enriching uranium in the isotope U-235. In 
addition, the creditor regulations in 10 CFR 70.44 shall apply to the 
creation of creditor interests in special nuclear material. These 
creditor regulations may be augmented by license conditions as 
necessary to allow ownership arrangements (such as sale and leaseback) 
not covered by 10 CFR 50.81, provided it can be found that such 
arrangements are not inimical to the common defense and security of the 
United States.
    6. Classified Information
    All matters of classification of information related to the design, 
construction, operation, and safeguarding of the American Centrifuge 
Plant shall be governed by classification guidance in ``DOE 
Classification Guide for Isotope Separation by the Gas Centrifuge 
Process (CG-IGC-1)'' (June 2002) and any later versions. Any person 
producing such information must adhere to the criteria in CG-IGC-1. All 
decisions on questions of classification or declassification of 
information shall be made by appropriate classification officials in 
the NRC and are not subject to de novo review in this proceeding.
    7. Access to Classified Information
    Portions of USEC's application for a license are classified 
Restricted Data or National Security Information. Persons needing 
access to those portions of the application will be required to have 
the appropriate security clearance for the level of classified 
information to which access is required. Access requirements apply 
equally to intervenors, their witnesses and counsel, employees of the 
applicant, its witnesses and counsel, NRC personnel, and others. Any 
person who believes that he or she will have a need for access to 
classified information for the purpose of this licensing proceeding, 
including the hearing, should immediately contact the NRC, Division of 
Fuel Cycle Safety and Safeguards, Washington, DC 20555, for information 
on the clearance process. Telephone calls may be made to Linda 
Marshall, Licensing Assistant, Special Projects Branch. Telephone: 
(301) 415-8129.
    8. Obtaining NRC Security Facility Approval and for Safeguarding 
Classified Information Received or Developed Pursuant to 10 CFR Part 95
    Any person who requires possession of classified information in 
connection with the licensing proceeding may process, store, reproduce, 
transmit, or handle classified information only in a location for which 
facility security approval has been obtained from the NRC's Division of 
Nuclear Security (NSIR), Washington, DC 20555. Telephone calls may be 
made to A. Lynn Silvious, Chief, Information Security Section. 
Telephone: (301) 415-2214.

B. Reconsideration

    The above guidance does not foreclose the applicant, any person 
admitted as a party to the hearing, or an entity participating under 10 
CFR 2.315(c) from litigating material factual issues necessary for 
resolution of contentions in this proceeding. Persons found by the 
Commission to have standing and entities participating under 10 CFR 
2.315(c) as of the date of the Commission's order on standing may also 
move the Commission to reconsider any portion of Section IV of this 
Notice and Commission Order where there is no clear Commission 
precedent or unambiguously governing statutes or regulations. Any 
motion to reconsider must be filed within 10 days after the 
Commission's order on standing. The motion must contain all technical 
or other arguments to support the motion. Other persons granted 
standing and entities participating under 10 CFR 2.315(c), including 
the applicant and the NRC staff, may respond to motions for 
reconsideration within 20 days of the Commission's Order. Motions will 
be ruled upon by the Commission. A motion for reconsideration does not 
stay the schedule set out above in section III.D.(4). However, if the 
Commission grants a motion for reconsideration, it will, as necessary, 
provide direction on adjusting the hearing schedule.

[[Page 61416]]

V. Pending Energy Legislation

    The Energy Policy Act of 2003, H.R. 6, is currently pending in 
Congress. H.R. 6, as currently constituted, contains provisions that 
address the manner in which certain issues are to be dealt with and a 
schedule for overall Commission consideration of an application for 
licensing an uranium enrichment facility. In the event that H.R. 6 is 
enacted, the Commission may need to issue an additional order to 
conform guidance and schedules for the USEC application to any new 
statutory requirements.

VI. Notice of Intent Regarding Classified Information

    As noted above, a hearing on this application will be governed by 
10 CFR part 2, subparts A, C, G, and to the extent classified material 
becomes involved, subpart I. Subpart I requires in accordance with 10 
CFR 2.907 that the NRC staff file a notice of intent if, at the time of 
publication of Notice of Hearing, it appears that it will be 
impracticable for the staff to avoid the introduction of Restricted 
Data or National Security Information into a proceeding. The applicant 
has submitted portions of its application that are classified. The 
Commission notes that, since the entire application becomes part of the 
record of the proceeding, the NRC staff has found it impracticable for 
it to avoid the introduction of Restricted Data of National Security 
Information into the proceeding.
    It is so ordered.

    Dated at Rockville, Maryland, this 7th day of October, 2004.

    For the Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. 04-23238 Filed 10-15-04; 8:45 am]
BILLING CODE 7590-01-P


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