[Federal Register Volume 75, Number 8 (Wednesday, January 13, 2010)]
[Notices]
[Pages 1819-1830]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-485]


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NUCLEAR REGULATORY COMMISSION

[Docket No. 70-7016; CLI-10-04]


GE-Hitachi Global Laser Enrichment LLC; (GLE Commercial 
Facility); Notice of Receipt of Application for License; Notice of 
Consideration of Issuance of License; Notice of Hearing and Commission 
Order; and Order Imposing Procedures for Access to Sensitive 
Unclassified Non-Safeguards Information and Safeguards Information for 
Contention Preparation

Commissioners: Gregory B. Jaczko, Chairman; Dale E. Klein; Kristine 
L. Svinicki.

[[Page 1820]]

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 June 26, 2009, an application from 
GE-Hitachi Global Laser Enrichment LLC (GLE), for a license to possess 
and use source, byproduct, and special nuclear material and to enrich 
natural uranium to a maximum of 8 percent U-235 by a laser-based 
enrichment process. The plant, to be known as the GLE Commercial 
Facility (GLE-CF), would be located approximately six miles north of 
the City of Wilmington in New Hanover County, North Carolina and would 
have a nominal capacity of six million separative work units (SWU) per 
year.
    GLE is a Delaware limited liability company and is a subsidiary of 
majority owner and Delaware limited liability company GE-Hitachi 
Nuclear Energy Americas LLC (GEH), which is a wholly owned subsidiary 
of GE-Hitachi Nuclear Energy Holdings LLC (GEH-Holdings). GEH-Holdings 
is a subsidiary of majority owner GENE Holding LLC (GENE) and minority 
owner Hitachi America, Ltd. GENE, also a Delaware limited liability 
company, is wholly owned by General Electric Company (GE), a United 
States corporation incorporated in New York. Hitachi America is a 
wholly owned subsidiary of Hitachi Ltd., a Japanese corporation. GLE 
also has two minority owners, GENE and Cameco Enrichment Holdings, LLC, 
a Delaware limited liability company wholly owned by Cameco US 
Holdings, Inc., a Nevada corporation, which is in turn wholly owned by 
Cameco Corporation, a Canadian corporation. GE, through its wholly 
owned and majority owned subsidiaries, has a 51% indirect interest in 
GLE. GLE's minority owners Hitachi and Cameco have indirect interests 
of 25% and 24%, respectively.
    On January 13, 2009, GLE was granted an exemption to file its 
environmental report in advance of its license application. GLE 
submitted its environmental report on January 30, 2009; and on July 13, 
2009, GLE submitted a supplement to its environment report, GLE 
Environmental Report Supplement 1--Early Construction. On April 9, 
2009, the NRC published notice of its intent to prepare an 
Environmental Impact Statement (EIS) on the proposed action and the 
opportunity for public comment on the appropriate scope of issues to be 
considered in the EIS. See 74 FR 16237 (April 9, 2009). By notice 
published in the Federal Register on July 24, 2009, the NRC extended 
the public comment period to allow members of the public to review the 
publicly available portions of the license application filed after June 
26, 2009. See 74 FR 36781 (July 24, 2009). On August 6, 2009, the NRC 
staff notified GLE by letter that staff had completed its acceptance 
review and had determined that the application was acceptable for 
formal review.
    Copies of GLE's application, safety analysis report, environmental 
report and supplement to its environmental report (except for portions 
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 GE Laser Enrichment Facility 
Licensing Web site at http://www.nrc.gov/materials/fuel-cycle-fac/laser.html#2a; (2) enter the NRC's Agencywide Document Access and 
Management System (ADAMS) at http://www.nrc.gov/reading-rm/adams.html, 
where the accession number for GLE's Environmental Report is 
ML090910573; accession number for the license application is 
ML091871003, and the accession number for Supplement 1 to the 
Environmental Report is ML092100577; (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#d4a4b0a694baa6b7fab3bba2"><span class="__cf_email__" data-cfemail="364652447658445518515940">[email protected]</span></a>. Hard copies of the documents 
are available from the PDR for a fee.
    As indicated above, GLE's initial application has been accepted for 
docketing and formal review (ADAMS accession number ML091960561) and, 
accordingly, the Commission is providing this notice of hearing and 
notice of opportunity to intervene in GLE's application for a license 
to construct and operate a laser enrichment facility. Pursuant to the 
Atomic Energy Act of 1954, as amended (AEA), the NRC staff will prepare 
a safety evaluation report (SER) after reviewing the application and 
make 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, the NRC staff will complete an 
environmental evaluation and prepare an EIS before the hearing on the 
issuance of a license is completed. See Notice of Intent to Prepare an 
Environmental Impact Statement for the Proposed General Electric-
Hitachi Global Laser Enrichment Uranium Enrichment Facility, 74 FR 
16237 (April 9, 2009); and Extension of Public Scoping Period for the 
Environmental Impact Statement for the Proposed General Electric-
Hitachi Global Laser Enrichment Facility, 74 FR 36781 (July 24, 2009).
    When available, the NRC staff's SER and EIS (except for portions 
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 GLE, and transcripts of prehearing 
conferences and hearings (except for portions 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 GLE 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 
Parts 30, 40, and 70, a single license will be issued authorizing: (1) 
The construction and operation of the GLE-CF; and (2) the receipt, 
possession, use, delivery, and transfer of byproduct (e.g., calibration 
sources), source and special nuclear material at the GLE-CF. If the 
GLE-CF is licensed, prior to commencement of operations the NRC will 
verify through an inspection conducted in accordance with section 
193(c) of the AEA and 10 CFR 70.32(k) that the facility meets the 
construction and operation requirements of the license. 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 AEA, as amended 
by the Solar, Wind, Waste, and Geothermal Power Production Incentives 
Act of 1990 Public Law 101-575, Sec.  5, 104 Stat. 2834, 2835-36 
(codified as amended at 42 U.S.C. 2243), a hearing will be conducted 
according to the rules of practice 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 AEA. The applicant and the NRC staff shall be 
parties to the proceeding.
    B. Pursuant to 10 CFR part 2, Subparts C and G, a contested hearing 
shall be conducted by an Atomic Safety and Licensing Board (Licensing 
Board) appointed by the Chief Administrative Judge of the Atomic Safety 
and Licensing Board Panel. Notice as to the

[[Page 1821]]

membership of the Licensing 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 parts 30, 40, 
and 70, and whether the requirements of NEPA and the NRC's implementing 
regulations in 10 CFR part 51 have been met.
    D. If this proceeding is not a contested proceeding, as defined by 
10 CFR 2.4, the Licensing 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 
to support license issuance 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 Licensing Board will, in the 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 the final balance among conflicting factors 
contained in the record of the proceeding with a view to determining 
the appropriate action to be taken; and determine, after weighing the 
environmental, economic, technical, and other benefits against the 
environmental and other costs, and considering reasonable alternatives, 
whether a license should be issued, denied, or appropriately 
conditioned to protect environmental values.
    F. If the proceeding becomes a contested proceeding, the Licensing 
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 Licensing Board 
will make the determinations set forth in paragraph D without 
conducting a de novo evaluation of the application.

III. Intervention

    A. By March 15, 2010, 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.
    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 
AEA 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 GLE'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 
Licensing Board will set the time and place for any prehearing 
conferences and evidentiary hearings, and the appropriate notices will 
be provided.
    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 upon a balancing of the factors 
specified in 10 CFR 2.309(c)(1)(i)-(viii).
    B. 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 by March 
15, 2010. The petition must be filed in accordance with the filing 
instructions in section IV, and should meet the requirements for 
petitions for leave to intervene set forth in section III.A, 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).
    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. 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 Licensing Board. Persons desiring 
to make a limited appearance are requested to inform the

[[Page 1822]]

Secretary of the Commission by March 15, 2010.

IV. Electronic Submissions (E-Filing)

    All documents filed in NRC adjudicatory proceedings, including a 
petition for leave to intervene and proffered contentions, 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. 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 a waiver in accordance with the procedures described below.
    To comply with the procedural requirements of E-Filing, at least 
ten (10) days prior to the filing deadline, the petitioner must contact 
the Office of the Secretary by e-mail at <a href="/cdn-cgi/l/email-protection#723a1713001b1c155c361d11191706321c00115c151d04"><span class="__cf_email__" data-cfemail="f3bb9692819a9d94ddb79c90989687b39d8190dd949c85">[email protected]</span></a>, or by 
calling (301) 415-1677, to request: (1) A digital ID certificate, which 
allows the participant (or its counsel or representative) to digitally 
sign documents and access the E-Submittal server for any proceeding in 
which it is participating; and/or (2) creation of an electronic docket 
for the proceeding (even in instances in which the petitioner (or its 
counsel or representative) already holds an NRC issued digital ID 
certificate). Each petitioner will need to download the Workplace Forms 
Viewer<SUP>TM</SUP> to access the Electronic Information Exchange 
(EIE), a component of the E-Filing system. The Workplace Forms 
Viewer<SUP>TM</SUP> is free and is available at http://www.nrc.gov/sitehelp/e-submittals/install-viewer.html. Information about applying 
for a digital ID certificate is available on NRC's public Web site at 
http://www.nrc.gov/site-help/e-submittals/apply-certificates.html.
    Once a petitioner has obtained a digital ID certificate, had a 
docket created, and downloaded the EIE viewer, it can then submit a 
petition for leave to intervene including proffered contentions. 
Submissions should be in Portable Document Format (PDF) in accordance 
with NRC guidance available on the NRC public Web site at http://www.nrc.gov/site-help/e-submittals.html. A filing is considered 
complete at the time the filer submits its documents through EIE. To be 
timely, an electronic filing must be submitted to the EIE system no 
later than 11:59 p.m. Eastern Time on the due date. Upon receipt of a 
transmission, the E-Filing system time-stamps the document and sends 
the submitter an e-mail notice confirming receipt of the document. The 
EIE system also distributes an e-mail notice that provides access to 
the document to the NRC Office of the General Counsel and any others 
who have advised the Office of the Secretary that they wish to 
participate in the proceeding, so that the filer need not serve the 
documents on those participants separately. Therefore, applicants and 
other participants (or their counsel or representative) must apply for 
and receive a digital ID certificate before a 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 through the ``Contact Us'' link 
located on the NRC Web site at http://www.nrc.gov/site-help/e-submittals.html or by calling the NRC electronic filing Help Desk, 
which is available between 8 a.m. and 8 p.m., Eastern Time, Monday 
through Friday, excluding government holidays. The toll-free help line 
number is (866) 672-7640. A person filing electronically may also seek 
assistance by sending an e-mail to the NRC electronic filing Help Desk 
at <a href="/cdn-cgi/l/email-protection#eca1bfa4a8c2be899f83999e8f89ac829e8fc28b839a"><span class="__cf_email__" data-cfemail="2f627c676b017d4a5c405a5d4c4a6f415d4c01484059">[email protected]</span></a>.
    Participants who believe that they have a good cause for not 
submitting documents electronically must, in accordance with 10 CFR 
2.302(g), file an exemption request 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.
    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, the Licensing Board, or a Presiding 
Officer. Participants are requested not to include personal privacy 
information, such as social security numbers, home addresses, or home 
phone numbers in their filings, 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. Commission Guidance

A. Licensing Board Determination of Contentions

    The Licensing Board shall issue a decision on the admissibility of 
contentions no later than June 14, 2010.

B. Novel Legal Issues

    If rulings on petitions, contention admissibility, or admitted 
contentions, 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 Licensing 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(a) and (b) within forty-five (45) 
days of the issuance of the Licensing Board order admitting 
contentions.
    (2) The Licensing Board, 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 NRC staff shall be governed by 10 CFR 
2.336(b) and 2.709. The NRC staff shall comply with 10 CFR 2.336(b) no 
later than 30 days after the Licensing 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), 
and, subsequent to the publication of the SER and FEIS, as otherwise 
required by the Commission's regulations. Discovery under 10 CFR 2.709 
shall not commence until the issuance of the particular document, i.e., 
SER or EIS, unless the Licensing Board, in its discretion, finds that 
commencing discovery against the NRC staff on safety

[[Page 1823]]

issues before the SER is issued, or on environmental issues before the 
FEIS is issued will expedite the hearing without adversely affecting 
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 NRC 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 Licensing 
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 Licensing 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 of this Order. Accordingly, the Licensing Board should issue 
its decision on either the contested or mandatory hearing, or both, 
held in this matter no later than 28\1/2\ months (855 days) from the 
date of this Order. 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 Licensing 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.
---------------------------------------------------------------------------

    (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 Licensing Board to sacrifice fairness and sound decision-making to 
expedite any hearing granted on this application. We do expect the 
Licensing Board to use the applicable techniques specified in: this 
Order; 10 CFR 2.332, 2.333 and 2.334; and 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 Licensing 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 March 15, 2010..................  Deadline for Requests for
                                          Hearing; Petitions to
                                          Intervene and Contentions; and
                                          Requests for Limited
                                          Participation.
Within April 13, 2010..................  Answers to Requests for
                                          Hearing; Petitions to
                                          Intervene and Request for
                                          Limited Participation.
Within April 23, 2010..................  Replies to Answers regarding
                                          Requests for Hearing;
                                          Petitions to Intervene and
                                          Request for Limited
                                          Participation.
Within May 13, 2010....................  Licensing Board holds Pre-
                                          hearing Conference to hear
                                          arguments on petitions to
                                          intervene and contention
                                          admissibility.
Within 30 days of pre-hearing            Licensing Board issues order
 conference.                              determining intervention.
                                         Discovery commences, except
                                          against the Staff.
Within 10 days of the Licensing Board    Persons admitted or entities
 order determining intervention:          participating under 10 CFR
                                          2.309(d) may submit a motion
                                          for reconsideration (see
                                          below, at Section VI.B).*
Within 20 days of the Licensing Board    Persons admitted or entities
 order determining intervention:          participating under 10 CFR
                                          2.309(d) may respond to any
                                          motion for reconsideration.
Within 30 days of the Licensing Board    Staff prepares hearing file.
 decision determining intervention:
Date of issuance of final SER/EIS        Staff updates hearing file.
                                         Discovery commences against the
                                          Staff.
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 final
 SER/EIS:
                                         Completion of answers and
                                          replies to motions for amended
                                          and late-filed contentions.
                                         Completion of discovery on
                                          original contentions.
                                         Deadline for summary
                                          disposition motions on
                                          original contentions.**
Within 50 days of the issuance of the    Licensing Board decision on
 final SER/EIS:                           admissibility of late-filed
                                          contentions.**

[[Page 1824]]

 
Within 55 days of the issuance of the    Licensing Board determination
 final SER/EIS:                           as to whether resolution of
                                          any motion for summary
                                          disposition will serve to
                                          expedite the proceedings.
Within 65 days of the issuance of the    Answers to motions for summary
 final SER/EIS:                           disposition identified by
                                          Licensing Board.
Within 75 days of the issuance of the    Replies to answers to motions
 final SER/EIS:                           for summary disposition.
Within 80 days of the issuance of final  Completion of discovery on late-
 SER/EIS:                                 filed contentions.
Within 105 days of the issuance of the   Licensing Board decision on
 final SER/EIS:                           summary disposition motions on
                                          original contentions.
Within 115 days of the issuance of       Direct testimony filed on
 final SER/EIS:                           original contentions and any
                                          amended or admitted late-filed
                                          contentions.
Within 125 days of the issuance of       Cross-examination plans filed
 final SER/EIS:                           on original contentions and
                                          any amended or admitted late-
                                          filed contentions.
Within 135 days of the issuance of       Evidentiary hearing begins on
 final SER/EIS:                           original contentions and any
                                          amended or admitted late-filed
                                          contentions.
Within 160 days of the issuance of       Completion of evidentiary
 final SER/EIS:                           hearing on remaining
                                          contentions and any amended or
                                          admitted late-filed
                                          contentions.
Within 205 days of the issuance of       Completion of findings and
 final SER/EIS:                           replies.
Within 245 days of the issuance of       Licensing Board's initial
 final SER/EIS:                           decision.***
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* Motions for reconsideration do not stay this schedule.
** No summary disposition motions on late-filed contentions are
  contemplated.
*** The Licensing Board's initial decision with respect to either a
  contested adjudicatory hearing or an uncontested, mandatory hearing
  should be issued no later than 28\1/2\ months from the date of this
  Order.

    To avoid unnecessary delays in the proceeding, the Licensing Board 
should not routinely grant requests for extensions of time and should 
manage the schedule such that the overall hearing process is completed 
within 28\1/2\ months. Although summary disposition motions are 
included in the schedule above, the Licensing Board shall not entertain 
motions for summary disposition under 10 CFR 2.710, unless the 
Licensing Board finds that such motions, if granted, are likely to 
expedite the proceeding. Unless otherwise justified, the Licensing 
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 to comply with applicable requirements in 
10 CFR part 2, unless directed otherwise by this Order or the Licensing 
Board. They are also obligated in their filings before the Licensing 
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, a party being dismissed from the 
proceeding.
    (6) The Commission directs the Licensing Board to inform the 
Commission promptly, in writing, if the Licensing Board determines that 
any single milestone could be missed by more than 30 days. The 
Licensing Board must include an explanation of why the milestone cannot 
be met and the measures the Licensing 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 Licensing Board and participants and to resolve any 
matter in controversy itself.

VI. Applicable Requirements

A. Licensing

    The Commission will license and regulate byproduct, source, and 
special nuclear material at the GLE-CF in accordance with the Atomic 
Energy Act of 1954, as amended. Section 274c.(1) of the AEA 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 GLE-
CF 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, 
or process byproduct, source or special nuclear material in the 
quantities that would be possessed at the GLE-CF. These include 10 CFR 
parts 19, 20, 21, 25, 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 fifth proceeding involving the licensing of an enrichment 
facility. The Commission issued a number of decisions in earlier 
proceedings regarding proposed sites in Homer, Louisiana (Claiborne 
Enrichment Center); Eunice, New Mexico (National Enrichment Facility); 
and Piketon, Ohio (American Centrifuge Plant). These final decisions--
Louisiana Energy Services (Claiborne Enrichment Center), CLI-92-7, 35 
NRC 93 (1992); Louisiana Energy Services (Claiborne Enrichment Center), 
CLI-97-15, 46 NRC 294 (1997); Louisiana Energy Services (Claiborne 
Enrichment Center), CLI-98-3, 47 NRC 77 (1998); Louisiana Energy 
Services (National Enrichment Facility), CLI-05-05, 61 NRC 22, 36 
(2005); Louisiana Energy Services (National Enrichment Facility), et 
al., CLI-05-17, 62 NRC 5 (2005); USEC, Inc. (American Centrifuge 
Plant), CLI-07-05, 65 NRC 109 (2007)--resolve a number of issues 
concerning uranium enrichment licensing and may be relied upon as 
precedent.
    Consistent with the AEA, and the Commission's regulations, the 
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. GLE'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

[[Page 1825]]

these environmental documents, unless GLE demonstrates a use for 
uranium in the depleted tails as a potential resource, the depleted 
tails will be considered waste. The Commission has previously concluded 
that depleted uranium from an enrichment facility is appropriately 
classified as low-level radioactive waste. See Louisiana Energy 
Services (National Enrichment Facility), CLI-05-05, 61 NRC 22, 36 
(2005). An approach for disposition of tails that is consistent with 
the USEC Privatization Act, such as transfer to DOE for disposal, 
constitutes a ``plausible strategy'' for disposition of the GLE 
depleted tails. Id. The NRC staff may consider the Department of 
Energy's Final Programmatic Environmental Impact Statement for 
Alternative Strategies for the Long-Term Management and Use of Depleted 
Uranium Hexaflouride (DOE/EIS-0269), 64 FR 43358 (Aug. 10, 1999), 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, GLE must also address the health, safety, and 
security issues associated with the on-site storage of depleted uranium 
tails pending removal of the tails from the site for disposal or DOE 
disposition.
2. Financial Qualifications
    Review of financial qualifications for enrichment facility license 
applications is governed by 10 CFR part 70. In Louisiana Energy 
Services (Claiborne 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 imposed--
providing one way to satisfy the requirements of 10 CFR part 70--
required LES to have in place prior to commencement of construction or 
operation: a minimum equity contribution of 30% of project costs from 
the parents and affiliates of LES partners prior to construction of the 
associated capacity; firm funding commitments for the remaining project 
costs; and 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.
3. Antitrust Review
    Section 105 of the AEA conferred on the NRC certain antitrust 
responsibilities with respect to applications for section 103 or 104b. 
licenses to construct or operate utilization or production facilities 
filed prior to August 8, 2005. The GLE enrichment facility, the 
application for which was filed after August 8, 2005, is subject to 
sections 53 and 63 of the AEA and is not a production or utilization 
facility within the meaning of section 105. Consequently, the NRC does 
not have antitrust responsibilities for GLE. The NRC will not entertain 
or consider antitrust issues in connection with the GLE application in 
this proceeding.
4. Foreign Ownership
    The GLE application is governed by sections 53 and 63 of the AEA, 
and, consequently, issues of foreign involvement shall be determined 
pursuant to sections 57 and 69, not sections 103, 104 or 193(f). 
Sections 57 and 69 of the AEA require, among other things, an 
affirmative finding by the Commission that issuance of a license for 
the GLE-CF will not be ``inimical to the common defense and security.'' 
The requirements of sections 57 and 69 are incorporated in 10 CFR 70.31 
and 10 CFR 40.32, respectively.
5. Creditor Requirements
    Pursuant to section 184 of the AEA, 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 GLE-CF shall be 
governed by classification guidance in ``DOE Classification Guide for 
Isotope Separation by the Gas Centrifuge Process,'' (June 2002); Change 
1 (Sept. 2005); Change 2 (May 2007) (CG-ICG-1); ``Joint NRC/DOE 
Classification Guide for Louisiana Energy Services Gas Centrifuge Plant 
(U),'' Confidential RD (Jan 2008) (CG-LCP-3A); and ``Joint NRC/DOE 
Class. Guide for Louisiana Energy Services Gas Centrifuge Plant 
Safeguards & Security (U),'' OUO (Jan 2008) (CG-LCP-3B), and any later 
versions thereof. Any person producing such information must adhere to 
the criteria in CG-IGC-1, CG-LCP-3A and CG-LCP-3B. 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 GLE'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 Timothy C. 
Johnson, Senior Project Manager, Uranium Enrichment Branch, Fuel 
Facility Licensing Directorate, Division of Fuel Cycle Safety and 
Safeguards, Office of Nuclear Material Safety and Safeguards. 
Telephone: (301) 492-3121.
8. Obtaining NRC Security Facility Approval 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 
Security Operations (NSIR), Washington, DC 20555. Telephone calls may 
be made to A. Lynn Silvious, Chief, Information Security Branch. 
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 permitted to 
intervene and entities participating under 10 CFR 2.315(c) as

[[Page 1826]]

of the date of the order on intervention may also move the Commission 
to reconsider any portion of section VI 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 order on intervention. The motion must 
contain all technical or other arguments to support the motion. Other 
persons granted intervention 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 order on 
intervention. Motions will be ruled upon by the Commission. A motion 
for reconsideration does not stay the schedule set out above in section 
V.D.(4). However, if the Commission grants a motion for 
reconsideration, it will, as necessary, provide direction on adjusting 
the hearing schedule.

VII. 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 may become part of 
the record of the proceeding, the NRC staff has found it impracticable 
for it to avoid the introduction of Restricted Data or National 
Security Information into the proceeding.

VIII. 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 requester 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 <a href="/cdn-cgi/l/email-protection#3c74595d4e55525b1278535f5759487c524e5f125b534a"><span class="__cf_email__" data-cfemail="074f6266756e6960294368646c62734769756429606871">[email protected]</span></a> and 
<a href="/cdn-cgi/l/email-protection#a5eae2e6c8c4ccc9c6c0cbd1c0d7e5cbd7c68bc2cad3"><span class="__cf_email__" data-cfemail="561911153b373f3a3533382233241638243578313920">[email protected]</span></a>, respectively.\3\ The request must include the 
following information:
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    \3\ While a request for hearing or petition to intervene in this 
proceeding must comply with the filing requirements of the NRC's 
``E-Filing Rule,'' the initial request to access SUNSI and/or SGI 
under these procedures should be submitted as described in this 
paragraph.
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    (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) If the request is for SUNSI, 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;
    (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 
requester 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 requester believes that the information is 
necessary to enable the requester to proffer and/or adjudicate a 
specific contention in this proceeding; \4\ and
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    \4\ 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 
requester's need to know than ordinarily would be applied in 
connection with an already-admitted contention or non-adjudicatory 
access to SGI.
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    (ii) The technical competence (demonstrable knowledge, skill, 
training or education) of the requester 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.
    (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 
requester'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 requester should 
contact the NRC's Office of Administration at (301) 492-3524.\5\
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    \5\ The requester will be asked to provide his or her full name, 
Social Security number, date and place of birth, telephone number, 
and e-mail address. After providing this information, the requester 
usually should be able to obtain access to the online form within 
one business day.
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    (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 
<a href="/cdn-cgi/l/email-protection#165079647b653844736579636475735678647538717960"><span class="__cf_email__" data-cfemail="fcba938e918fd2ae998f93898e9f99bc928e9fd29b938a">[email protected]</span></a>. The fingerprint card will be used to satisfy 
the requirements of 10 CFR part 2, 10

[[Page 1827]]

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 \6\ to 
the U.S. Nuclear Regulatory Commission for each individual for whom the 
request for access has been submitted, and
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    \6\ This fee is subject to change pursuant to the Office of 
Personnel Management's adjustable billing rates.
---------------------------------------------------------------------------

    (e) If the requester 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 requester should also provide a 
statement identifying which exemption the requester is invoking and 
explaining the requester'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 requester 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 state that the forms and fees have been submitted as required 
above.
    D. To avoid delays in processing requests for access to SGI, the 
requester 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 requester 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 requester satisfies both E.(1) and E.(2) above, the NRC staff 
will notify the requester in writing that access to SUNSI has been 
granted. The written notification will contain instructions on how the 
requester 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\7\ 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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    \7\ 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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    G. For requests for access to SGI, if the NRC staff determines that 
the requester 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 
requester 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\8\ by each individual who will be granted access to SGI.
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    \8\ 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.
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    H. Release and Storage of SGI. Prior to providing SGI to the 
requester, 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 requester 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 requester 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 requester 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

[[Page 1828]]

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.\9\
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    \9\ 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/SGI request submitted to the NRC staff under these 
procedures.
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    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 7th day of January 2010.

    For the Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.

Chairman Gregory B. Jaczko, Offering a Separate Statement

    I support issuance of this notice and order in part. As I explained 
in my separate statement for the Areva notice, I welcome the 
opportunity for interested members of the public to participate in our 
hearing process and to have their concerns about the proposed facility 
heard. I have, however, the same concerns with this hearing notice as I 
expressed with regard to the Areva notice.
    First, I am troubled by establishing a tight schedule that depends 
on superior applicant performance and therefore may turn out to be 
unrealistic. For example, the schedule reduces the time normally 
allowed for applicant responses to staff requests for additional 
information despite the fact that the agency has no control over the 
timeliness or quality of applicant submittals. Establishing timelines 
which may not be met, even through no fault of the staff, may result in 
unfounded claims that the agency's process is inefficient and decrease 
confidence in our licensing process.
    I also believe that the numerous milestones set forth in the order 
are unnecessary and overly prescriptive. With the milestones and 
deadlines already provided in our regulations, the agency has the 
structure in place to ensure an efficient and effective hearing 
process. Importantly, those regulations allow the Boards flexibility in 
adapting the hearing schedule to accommodate the complexity of the 
issues and the circumstances unique to each adjudicatory proceeding. I 
believe this flexibility is important and should be retained for 
enrichment applications.
    Recent developments highlight my concerns. Staff has informed the 
Commission that issuance of the final Environmental Impact Statements 
(EISs) will be delayed at least seven months in light of information 
only recently submitted by Areva concerning the need to construct 
additional transmission lines. Staff explained that its aggressive 
review schedule is predicated upon the submittal of complete 
information by Areva. Therefore, any deficiency in Areva's submittals, 
like this one, can delay the staff's review and, consequently, the 
hearing schedule. Events which can impact schedule are inevitable and 
unpredictable given the complexity and length of these adjudications. 
The schedule adjustments necessitated by these events are best handled 
by the Boards responsible for the hearings without rigid Commission 
deadlines which may compromise the fairness or thoroughness of the 
hearing process.
    In addition, as I stated in regard to the Areva notice, I believe 
the order should state that the Commission, rather than the licensing 
board, should preside over the mandatory hearing. Gaining experience in 
this mandatory proceeding will aid the Commission in handling mandatory 
hearings on new reactor applications.
    Unlike the Areva notice, this notice is silent on the question of 
whether the NEPA review should address terrorism. I believe that the 
Commission should direct the staff to consider terrorism in its 
environmental review, as we did in the Areva notice. I believe that the 
Commission should have a consistent, nationwide approach to NEPA and 
should discontinue the practice of addressing terrorism only for 
facilities within the jurisdiction of the Ninth Circuit. This practice 
creates a disparity in the public information we provide concerning the 
potential impacts of a terrorist attack on our nuclear facilities based 
on the arbitrary criteria of geographic location. This disparity is 
highlighted when, as here, the agency simultaneously conducts NEPA 
reviews for similar facilities within and outside the geographical 
boundaries of the Ninth Circuit. I believe the public is disserved when 
they are selectively and arbitrarily denied information on a matter of 
this importance to health and safety. As a policy matter, I believe 
that the Commission's commitment to transparency should no longer be 
compromised, particularly now that we know that the environmental 
impacts of terrorism can be analyzed and disclosed meaningfully to the 
public, while appropriately protecting classified information.
    Lastly, I am troubled by a matter which is related to both the 
Areva and GE-Hitachi applications--the prospect of allowing applicants 
to conduct construction activities prohibited by our regulations 
through issuance of exemptions. In my view, the appropriate process for 
allowing construction activities before licensing is the one we used 
for reactor licensees--our rulemaking process. This process, which 
allows stakeholder input and, therefore, offers transparency in our 
decision-making process, should not be circumvented by the use of 
exemptions which I believe should be reserved for circumstances unique 
to a specific facility.

Commissioners Dale E. Klein and Kristine L. Svinicki, Offering a 
Further Statement

    We support issuance of this order, in its entirety, as we did the 
AREVA notice of hearing. Areva Enrichment Services, LLC (Eagle Rock 
Enrichment Facility), CLI-09-15 (July 23, 2009). The U.S. NRC Strategic 
Plan recognizes that initiatives such as the Government Performance and 
Results Act challenge Federal agencies to become more effective and 
efficient and to justify their budget requests with demonstrated 
program results. The NRC must strive to become more effective and 
efficient in light of the increasing licensing workload and the drive 
to improve performance in government. With this in mind, the NRC has 
formally adopted strategic goals in the area of organizational 
excellence, including the following: ``NRC actions are high quality, 
efficient, timely, and realistic, to enable the safe and beneficial use 
of radioactive materials.''
    The NRC has recognized, in setting its strategic goals and through 
its performance and accountability reporting, that the efficiency of 
the agency's regulatory processes is important to the regulated 
community and other stakeholders, including

[[Page 1829]]

Federal, State, local, and Tribal authorities and the public. The NRC 
has committed itself to improving the timeliness of its application 
reviews without compromising safety and security, and acknowledges that 
this is possible provided industry submits complete, high-quality 
applications. Quoting again from the NRC Strategic Plan: ``While the 
NRC will never compromise safety and security for increased efficiency, 
the agency works to improve the efficiency of its regulatory processes 
wherever possible.''
    High quality--on both the agency's and the applicant's parts--
should be, and is, the NRC's goal. The proceeding at issue here is no 
exception. We believe that the schedule laid out in the order--while 
demanding the requisite quality in licensee submittals--has been 
demonstrated for similar applications, is achievable with no compromise 
to the agency's safety and security missions, and is representative of 
the performance expectations the NRC should set for itself. Our 
judgment is not altered by the Chairman's reliance on the recently-
announced events in an entirely separate proceeding--the AREVA Eagle 
Rock enrichment facility application. There, NRC Staff announced a 
delay in issuing the final EIS as a result of AREVA's recent submission 
on the need to construct additional transmission lines. This is thin 
support at best for the Chairman's unwarranted conclusion that the 
Commission's deadlines ``may compromise the fairness or thoroughness of 
the hearing process.'' A later date for the scheduled issuance of the 
final EIS may delay completion of the hearing, but it does not 
necessitate any change in the milestones since the milestones that 
follow the issuance of the final EIS are measured from the date of its 
issuance.
    Further, we are not persuaded by the Chairman's argument regarding 
consideration of terrorism under NEPA. We have considered this issue in 
many proceedings,\1\ and are not prepared to abandon our carefully-
considered decisions without sufficient justification. Fundamentally, 
we cannot agree with the Chairman's assertion that our approach is at 
odds with the agency's commitment to transparency. At bottom, this 
ruling reflects our consistent position on the requirements of NEPA and 
their application.\2\ Moreover, there is no dispute that the agency has 
devoted enormous resources and effort to ensure the adequate protection 
of public health and safety from the risks of terrorism after the 
events of September 11, 2001. Our differences with Chairman Jaczko on 
this issue should not obscure this fact.
---------------------------------------------------------------------------

    \1\ See, e.g., AmerGen Energy Co., LLC (Oyster Creek Nuclear 
Generating Station, CLI-07-8, 65 NRC 124 (2007), aff'd N.J. Dep't of 
Envtl. Prot. v. NRC, 561 F.3d 132 (3d Cir. 2009).
    \2\ We have complied with the Ninth Circuit's ruling for 
facilities within the Ninth Circuit, as we are required to do. That 
experience, however, is very limited, and does not demonstrate that 
conducting environmental analyses of terrorist scenarios for the 
licensing of all major facilities would be practicable or lead to 
meaningful additional information.

   Attachment 1--General Target Schedule for Processing and Resolving
Requests for Access to Sensitive Unclassified Non-Safeguards Information
              and Safeguards Information in this Proceeding
------------------------------------------------------------------------
              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-
                                 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 fingerprint/
                                 background check.
60............................  Deadline for submitting petition for
                                 intervention containing: (i)
                                 Demonstration of standing; (ii) all
                                 contentions whose formulation does not
                                 require access to SUNSI and/or SGI (+25
                                 Answers to petition for intervention;
                                 +7 petitioner/requestor reply).
20............................  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 (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,'' no
                                 ``need to know,'' 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.
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.

[[Page 1830]]

 
A + 28........................  Deadline for submission of contentions
                                 whose development depends upon access
                                 to SUNSI and/or SGI. However, if more
                                 than 25 days remain between the
                                 petitioner's receipt of (or access to)
                                 the information and the deadline for
                                 filing all other contentions (as
                                 established in the notice of hearing or
                                 opportunity for hearing), the
                                 petitioner may file its SUNSI or SGI
                                 contentions by that later deadline.
A + 53........................  (Contention receipt +25) Answers to
                                 contentions whose development depends
                                 upon access to SUNSI and/or SGI.
A + 60........................  (Answer receipt +7) Petitioner/
                                 Intervenor reply to answers.
>A + 60.......................  Decision on contention admission.
------------------------------------------------------------------------

[FR Doc. 2010-485 Filed 1-12-10; 8:45 am]
BILLING CODE 7590-01-P


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