[Federal Register Volume 75, Number 47 (Thursday, March 11, 2010)]
[Notices]
[Pages 11566-11571]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-5252]


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NUCLEAR REGULATORY COMMISSION

[Docket No. 50-412; NRC-2010-0086]


Firstenergy Nuclear Operating Company, Firstenergy Nuclear 
Generation Corp., Ohio Edison Company, The Toledo Edison Company; 
Notice of Consideration of Issuance of Amendment to Facility Operating 
License for Beaver Valley Power Station, Unit No. 2; Opportunity for A 
Hearing, and Order Imposing Procedures for Access to Sensitive 
Unclassified Non-Safeguards Information

AGENCY: Nuclear Regulatory Commission.

ACTION: Order and notice of license amendment request, opportunity to 
comment, opportunity to request a hearing.

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DATES: Comments must be filed by April 12, 2010. A request for a 
hearing must be filed by May 10, 2010.

FOR FURTHER INFORMATION CONTACT: Nadiyah Morgan, Project Manager, Plant 
Licensing Branch I-1, Division of Operating Reactor Licensing, Office 
of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, 
Rockville, Maryland 20852-2738. Telephone: (301) 415-1016; fax number: 
(301) 415-2102; e-mail: <a href="/cdn-cgi/l/email-protection#064867626f7f676e284b69746167684668746528616970"><span class="__cf_email__" data-cfemail="034d62676a7a626b2d4e6c7164626d436d71602d646c75">[email protected]</span></a>.

ADDRESSES: Please include Docket ID NRC-2010-0086 in the subject line 
of your comments. Comments submitted in writing or in electronic form 
will be posted on the NRC Web site and on the Federal rulemaking Web 
site Regulations.gov. Because your comments will not be edited to 
remove any identifying or contact information, the NRC cautions you 
against including any information in your submission that you do not 
want to be publicly disclosed.
    The NRC requests that any party soliciting or aggregating comments 
received from other persons for submission to the NRC inform those 
persons that the NRC will not edit their comments to remove any 
identifying or contact information, and therefore, they should not 
include any information in their comments that they do not want 
publicly disclosed.
    You may submit comments by any one of the following methods.
    Federal Rulemaking Web site: Go to http://www.regulations.gov and 
search for documents filed under Docket ID NRC-2010-0086. Comments may 
be submitted electronically through this Web site. Address questions 
about NRC dockets to Carol Gallagher 301-492-3668; e-mail 
<a href="/cdn-cgi/l/email-protection#da99bba8b5b6f49dbbb6b6bbbdb2bfa89ab4a8b9f4bdb5ac"><span class="__cf_email__" data-cfemail="c281a3b0adaeec85a3aeaea3a5aaa7b082acb0a1eca5adb4">[email protected]</span></a>.
    Mail comments to: Michael T. Lesar, Chief, Rulemaking and 
Directives Branch (RDB), Office of Administration, Mail Stop: TWB-05-
B01M, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, or 
by fax to RDB at (301) 492-3446.
    To access documents related to this notice see Section V, Further 
Information.

SUPPLEMENTARY INFORMATION: 

I. Introduction

    The U.S. Nuclear Regulatory Commission (NRC or the Commission) is 
considering issuance of an amendment to Facility Operating License No. 
NPF-73, issued to FirstEnergy Nuclear Operating Company (licensee) for 
operation of the Beaver Valley Power Station, Unit No. 2 (BVPS-2), 
located in Shippingport, Pennsylvania.
    The proposed amendment would revise the BVPS-2 Technical 
Specifications to support the installation of high density fuel storage 
racks in the BVPS-2 spent fuel pool. The amendment application dated 
April 9, 2009 (Agencywide Documents Access and Management System 
(ADAMS) Accession No. ML091210251), was supplemented by letters dated 
June 15, 2009 (ADAMS Accession No. ML091680614) and January 18, 2010. 
Access to these documents is discussed in Section V, Further 
Information. The January 18, 2010, letter and a portion of the June 15, 
2009, letter contain sensitive unclassified non-safeguards information 
(SUNSI), and are not available to the public. See Section V, Further 
Information, and the Order providing instructions for requesting access 
to the withheld information.
    Before issuance of the proposed license amendment, the Commission 
will have made findings required by the Atomic Energy Act of 1954, as 
amended (the Act), and the Commission's regulations.
    The Commission has made a proposed determination that the amendment 
request involves no significant hazards consideration. Under the 
Commission's regulations in Title 10 of the Code of Federal Regulations 
(10 CFR), Section 50.92, this means that operation of the facility in 
accordance with the proposed amendment would not (1) involve a 
significant increase in the probability or consequences of an accident 
previously evaluated; or (2) create the possibility of a new or 
different kind of accident from any accident previously evaluated; or 
(3) involve a significant reduction in a margin of safety. As required 
by 10 CFR 50.91(a), the licensee has provided its analysis of the issue 
of no significant hazards consideration, which is presented below:

    1. Does the proposed change involve a significant increase in 
the probability or consequences of an accident previously evaluated?
    Response: No. The relevant accidents previously evaluated are 
limited to the fuel handling and criticality accidents.
    The fuel storage racks are not a design basis accident 
initiator. The potential contribution to the applicable design basis 
accident (a fuel handling accident) has been evaluated by 
considering three types of fuel assembly drop scenarios. The three 
types of scenarios are a shallow drop, a deep drop and a fuel to 
fuel drop. The shallow drop postulates that the fuel assembly drops 
vertically and hits the top of a rack. The deep drop postulates that 
the fuel assembly falls through an empty storage cell impacting the 
rack baseplate. The fuel to fuel drop postulates that a fuel 
assembly drops on top of a stored fuel assembly in a rack. The 
structural damage to the impacted target is primarily dependent on 
the mass of the falling fuel assembly and the drop height. Since the 
fuel assembly mass and drop height are not significantly changed by 
the installation of the high density racks, the postulated 
structural damage to impacted targets are also not significantly 
changed due to the installation of the high density racks.
    The physical limitations of the racks and the administrative and 
operational controls used to load fuel assemblies into the spent 
fuel pool ensure that fuel assemblies are stored in compliance with 
the applicable fuel storage requirements, both during and following 
the installation phase of the reracking project. These controls will 
remain in effect and will continue to protect against

[[Page 11567]]

criticality and fuel handling accidents during and following the 
installation phase of the reracking project. Therefore, there is no 
significant impact on the probability of fuel handling or 
criticality accidents.
    The criticality analysis applicable to the existing racks has 
not changed from what was approved by Amendment 165 for BVPS-2 
issued on March 27, 2008. The new criticality analysis defines new 
spent fuel storage requirements based on enrichment and burnup 
limits. The new analysis demonstrates that k<INF>eff</INF> remains 
below 1.0 with zero soluble boron in the spent fuel pool, and that 
k<INF>eff</INF> remains less than or equal to 0.95 for the entire 
pool with credit for soluble boron under non-accident and accident 
conditions with a 95% probability at a 95% confidence level. As a 
result potential consequences of accidents previously evaluated 
remain unchanged for either type of rack.
    The proposed installation of the high density racks, and the 
coexistence of the existing and high density racks in the spent fuel 
pool during the installation phase, does not result in changes to 
the spent fuel pool cooling system and therefore the probability of 
a loss of spent fuel pool cooling is not increased. The consequences 
of a loss of spent fuel pool cooling were evaluated and found to not 
involve a significant increase as a result of the proposed changes. 
A thermal-hydraulic evaluation for the loss of spent fuel pool 
cooling was performed. The analysis determined that the minimum time 
to boil provides sufficient time for the operators to restore 
cooling or establish an alternate means of cooling following a 
complete loss of forced cooling. Therefore, the proposed change 
represents no significant increase in the consequences of loss of 
spent fuel pool cooling for either type of rack.
    Therefore, the proposed installation of high density fuel 
storage racks and the resulting proposed Technical Specifications 
changes do not involve a significant increase in the probability or 
consequences of an accident previously evaluated.
    2. Does the proposed change create the possibility of a new or 
different kind of accident from any accident previously evaluated?
    Response: No. The relevant types of accidents previously 
evaluated are limited to criticality and fuel handling accidents. 
Although the new analysis will increase the maximum storage 
capacity, implementation of fuel loading requirements and fuel 
handling activities will continue to be performed under 
administrative and operational controls. The utilization of the 
additional storage capacity within the allowances of the revised 
analysis will not create the possibility of a new or different kind 
of accident from any accident previously evaluated.
    Other than the removal of the existing racks and installation of 
the high density racks, no new or different activities are 
introduced as a result of the proposed changes. The drop of a high 
density rack during the installation phase has been described and 
evaluated as part of this submittal. This evaluation produced 
acceptable results. The drop of an existing rack during its removal 
is bounded by this evaluation because a new rack is heavier than an 
existing rack. The supporting evaluation also considered dropping 
items into the fuel cask area or onto the cover that will be placed 
over the cask pit area during the installation of the new racks. All 
of the items to be installed in or over the fuel cask area weigh 
much less than a spent fuel cask, for which the fuel cask area was 
designed. As such, the drop of any of these items onto the floor of 
the fuel cask area would be bounded by a spent fuel cask drop. With 
respect to drops onto the fuel that will temporarily be stored in 
the fuel cask area, the fuel cask area cover is designed to 
withstand the load imposed by a rack striking it from above. Since 
the fuel cask area cover would not fail due to this event, there 
cannot be any impact on the fuel assemblies in the rack below it. 
The evaluation also produced acceptable results for dropping any of 
the three parts of the fuel cask area cover onto the fuel loaded 
into the rack in the fuel cask area.
    Therefore the new activities introduced because of the reracking 
have been evaluated and been found to not create the possibility of 
a new or different kind of accident from any accident previously 
evaluated.
    No changes are proposed to the spent fuel pool cooling system or 
makeup systems and therefore no new accidents are considered related 
to the loss of spent fuel pool cooling or makeup capability.
    Therefore, the proposed installation of high density fuel 
storage racks and the resulting proposed Technical Specifications 
changes do not create the possibility of a new or different kind of 
accident from any previously evaluated for either type of rack.
    3. Does the proposed change involve a significant reduction in a 
margin of safety?
    Response: No. The margin to safety with respect to analyzed 
accidents involves maintaining k<INF>eff</INF> through fuel storage 
requirements and boron concentration controls in the spent fuel 
pool. The new criticality analysis demonstrates that k<INF>eff</INF> 
remains below 1.0 with zero soluble boron, and that k<INF>eff</INF> 
remains less than or equal to 0.95 for the entire pool with credit 
for soluble boron under non-accident and accident conditions with a 
95% probability at a 95% confidence level. This is consistent with 
the current licensing basis of the BVPS-2 spent fuel pool.
    The TSs controlling the water level or boron concentration of 
the spent fuel pool are not being changed by this license amendment 
request. Therefore, there is no significant change to the margin of 
safety attributed to the water level or the boron required when the 
spent fuel pool is fully flooded with borated water or the boron 
concentration required for accident or a boron dilution event for 
either type of rack.
    One of the proposed changes to the TSs is being made to assure 
that the existing (Boraflex) racks and the high density (Metamic) 
racks are neutronically decoupled during the installation phase of 
the reracking project. This temporary requirement results in the 
existing and new criticality analyses both being valid during the 
installation phase. Following the completion of the installation of 
the high density racks, the new criticality analysis becomes the 
licensing basis of the BVPS-2 spent fuel pool.
    The structural analysis of the high density racks, along with 
the evaluation of the spent fuel pool structure, indicates that the 
integrity of these structures will be maintained during and 
following installation of the high density racks. The previously 
performed structural analysis of the existing racks resulted in the 
same conclusion. Since the structural requirements are satisfied, 
the applicable safety margins are not significantly reduced for 
either type of rack.
    The proposed change includes a coupon sampling program that will 
monitor the physical properties of the Metamic absorber material. 
The monitoring program provides a method of verifying that the 
neutron absorber assumptions used in the spent fuel pool criticality 
analyses remain valid.
    Therefore, the proposed installation of high density fuel 
storage racks and the resulting proposed TSs changes do not involve 
a significant reduction in margin of safety for either type of rack.

    The NRC staff has reviewed the licensee's analysis and, based on 
this review, it appears that the three standards of 10 CFR 50.92(c) are 
satisfied. Therefore, the NRC staff proposes to determine that the 
amendment request involves no significant hazards consideration.
    The Commission is seeking public comments on this proposed 
determination. Any comments received within 30 days after the date of 
publication of this notice will be considered in making any final 
determination. You may submit comments using any of the methods 
discussed under the ADDRESSES caption.
    Normally, the Commission will not issue the amendment until the 
expiration of 60 days after the date of publication of this notice. The 
Commission may issue the license amendment before expiration of the 60-
day period provided that its final determination is that the amendment 
involves no significant hazards consideration. In addition, the 
Commission may issue the amendment prior to the expiration of the 30-
day comment period should circumstances change during the 30-day 
comment period such that failure to act in a timely way would result, 
for example, in derating or shutdown of the facility. Should the 
Commission take action prior to the expiration of either the comment 
period or the notice period, it will publish in the Federal Register a 
notice of issuance. Should the Commission make a final No Significant 
Hazards Consideration Determination, any hearing will take place after 
issuance. The Commission expects that the need to take this action will 
occur very infrequently.

[[Page 11568]]

II. Opportunity To Request a Hearing

    Requirements for hearing requests and petitions for leave to 
intervene are found in 10 CFR 2.309, ``Hearing requests, Petitions to 
Intervene, Requirements for Standing, and Contentions.'' Interested 
persons should consult 10 CFR Part 2, section 2.309, which is available 
at the NRC's Public Document Room (PDR), located at O1 F21, One White 
Flint North, 11555 Rockville Pike, Rockville, MD 20852 (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.

III. Petitions for Leave To Intervene

    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. 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 
amendment in response to the application. The petition must also 
include a concise statement of the alleged facts or expert opinions 
which support the position of the petitioner and on which the 
petitioner intends to rely at hearing, together with references to the 
specific sources and documents on which the petitioner intends to rely. 
Finally, the petition must provide sufficient information to show that 
a genuine dispute exists with the applicant on a material issue of law 
or fact, including references to specific portions of the application 
for amendment that the petitioner disputes and the supporting reasons 
for each dispute, or, if the petitioner believes that the application 
for amendment fails to contain information on a relevant matter as 
required by law, the identification of each failure and the supporting 
reasons for the petitioner's belief. 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).
    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 May 
10, 2010. The petition must be filed in accordance with the filing 
instructions in Section IV of this document, and should meet the 
requirements for petitions for leave to intervene set forth in this 
section, except that 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).
    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 Secretary of 
the Commission by May 10, 2010.
    If a hearing is requested, the Commission will make a final 
determination on the issue of no significant hazards consideration. The 
final determination will serve to decide when the hearing is held. If 
the final determination is that the amendment request involves no 
significant hazards consideration, the Commission may issue the 
amendment and make it immediately effective, notwithstanding the 
request for a hearing. Any hearing held would take place after issuance 
of the amendment. If the final determination is that the amendment 
request involves a significant hazards consideration, any hearing held 
would take place before the issuance of any amendment.

IV. Electronic Submissions (E-Filing)

    All documents filed in NRC adjudicatory proceedings, including a 
request for hearing, a petition for leave to intervene, any motion or 
other document filed in the proceeding prior to the submission of a 
request for hearing or petition to intervene, and documents filed by 
interested governmental entities participating under 10 CFR 2.315(c), 
must be filed in accordance with the NRC E-Filing rule (72 FR 49139, 
August 28, 2007). The E-Filing process requires participants to submit 
and serve all adjudicatory documents over the Internet, or in some 
cases to mail copies on electronic storage media. Participants may not 
submit paper copies of their filings unless they seek an exemption in 
accordance with the procedures described below.
    To comply with the procedural requirements of E-Filing, at least 
ten (10) days prior to the filing deadline, the participant should 
contact the Office of the Secretary by e-mail at 
<a href="/cdn-cgi/l/email-protection#ef878a8e9d868188c18b808c848a9baf819d8cc1888099"><span class="__cf_email__" data-cfemail="88e0ede9fae1e6efa6ece7ebe3edfcc8e6faeba6efe7fe">[email protected]</span></a>, or by telephone at (301) 415-1677, to request 
(1) a digital ID certificate, which allows the participant (or its 
counsel or representative) to digitally sign documents and access the 
E-Submittal server for any proceeding in which it is participating; and 
(2) advise the

[[Page 11569]]

Secretary that the participant will be submitting a request or petition 
for hearing (even in instances in which the participant, or its counsel 
or representative, already holds an NRC-issued digital ID certificate). 
Based upon this information, the Secretary will establish an electronic 
docket for the hearing in this proceeding if the Secretary has not 
already established an electronic docket.
    Information about applying for a digital ID certificate is 
available on NRC's public Web site at http://www.nrc.gov/site-help/e-submittals/apply-certificates.html. System requirements for accessing 
the E-Submittal server are detailed in NRC's ``Guidance for Electronic 
Submission,'' which is available on the agency's public Web site at 
http://www.nrc.gov/site-help/e-submittals.html. Participants may 
attempt to use other software not listed on the Web site, but should 
note that the NRC's E-Filing system does not support unlisted software, 
and the NRC Meta System Help Desk will not be able to offer assistance 
in using unlisted software.
    If a participant is electronically submitting a document to the NRC 
in accordance with the E-Filing rule, the participant must file the 
document using the NRC's online, Web-based submission form. In order to 
serve documents through EIE, users will be required to install a Web 
browser plug-in from the NRC Web site. Further information on the Web-
based submission form, including the installation of the Web browser 
plug-in, is available on the NRC's public Web site at http://www.nrc.gov/site-help/e-submittals.html.
    Once a participant has obtained a digital ID certificate and a 
docket has been created, the participant can then submit a request for 
hearing or petition for leave to intervene. Submissions should be in 
Portable Document Format (PDF) in accordance with NRC guidance 
available on the NRC public Web site at http://www.nrc.gov/site-help/e-submittals.html. A filing is considered complete at the time the 
documents are submitted through the NRC's E-Filing system. To be 
timely, an electronic filing must be submitted to the E-Filing system 
no later than 11:59 p.m. Eastern Time on the due date. Upon receipt of 
a transmission, the E-Filing system time-stamps the document and sends 
the submitter an e-mail notice confirming receipt of the document. The 
E-Filing system also distributes an e-mail notice that provides access 
to the document to the NRC Office of the General Counsel and any others 
who have advised the Office of the Secretary that they wish to 
participate in the proceeding, so that the filer need not serve the 
documents on those participants separately. Therefore, applicants and 
other participants (or their counsel or representative) must apply for 
and receive a digital ID certificate before a hearing request/petition 
to intervene is filed so that they can obtain access to the document 
via the E-Filing system.
    A person filing electronically using the agency's adjudicatory E-
Filing system may seek assistance by contacting the NRC Meta System 
Help Desk through the ``Contact Us'' link located on the NRC Web site 
at http://www.nrc.gov/site-help/e-submittals.html, by e-mail at 
<a href="/cdn-cgi/l/email-protection#9cd1cfd4d8b2cef9eff3e9eefff9dcf2eeffb2fbf3ea"><span class="__cf_email__" data-cfemail="b5f8e6fdf19be7d0c6dac0c7d6d0f5dbc7d69bd2dac3">[email protected]</span></a>, or by a toll-free call at (866) 672-7640. The 
NRC Meta System Help Desk is available between 8 a.m. and 8 p.m., 
Eastern Time, Monday through Friday, excluding government holidays.
    Participants who believe that they have a good cause for not 
submitting documents electronically must file an exemption request, in 
accordance with 10 CFR 2.302(g), with their initial paper filing 
requesting authorization to continue to submit documents in paper 
format. Such filings must be submitted by: (1) First class mail 
addressed to the Office of the Secretary of the Commission, U.S. 
Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: 
Rulemaking and Adjudications Staff; or (2) courier, express mail, or 
expedited delivery service to the Office of the Secretary, Sixteenth 
Floor, One White Flint North, 11555 Rockville Pike, Rockville, 
Maryland, 20852, Attention: Rulemaking and Adjudications Staff. 
Participants filing a document in this manner are responsible for 
serving the document on all other participants. Filing is considered 
complete by first-class mail as of the time of deposit in the mail, or 
by courier, express mail, or expedited delivery service upon depositing 
the document with the provider of the service. A presiding officer, 
having granted an exemption request from using E-Filing, may require a 
participant or party to use E-Filing if the presiding officer 
subsequently determines that the reason for granting the exemption from 
use of E-Filing no longer exists.
    Documents submitted in adjudicatory proceedings will appear in 
NRC's electronic hearing docket which is available to the public at 
http://ehd.nrc.gov/EHD_Proceeding/home.asp, unless excluded pursuant 
to an order of the Commission, or the presiding officer. Participants 
are requested not to include personal privacy information, such as 
social security numbers, home addresses, or home phone numbers in their 
filings, unless an NRC regulation or other law requires submission of 
such information. With respect to copyrighted works, except for limited 
excerpts that serve the purpose of the adjudicatory filings and would 
constitute a Fair Use application, participants are requested not to 
include copyrighted materials in their submission.
    The Commission hereby provides notice that this is a proceeding on 
an application for a license amendment falling within the scope of 
section 134 of the Nuclear Waste Policy Act of 1982 (NWPA), 42 U.S.C. 
10154. Under section 134 of the NWPA, the Commission, at the request of 
any party to the proceeding, must use hybrid hearing procedures with 
respect to ``any matter which the Commission determines to be in 
controversy among the parties.''
    The hybrid procedures in section 134 provide for oral argument on 
matters in controversy, preceded by discovery under the Commission's 
rules and the designation, following argument of only those factual 
issues that involve a genuine and substantial dispute, together with 
any remaining questions of law, to be resolved in an adjudicatory 
hearing. Actual adjudicatory hearings are to be held on only those 
issues found to meet the criteria of section 134 and set for hearing 
after oral argument.
    The Commission's rules implementing section 134 of the NWPA are 
found in 10 CFR Part 2, Subpart K, ``Hybrid Hearing Procedures for 
Expansion of Spent Fuel Storage Capacity at Civilian Nuclear Power 
Reactors.'' Under those rules, any party to the proceeding may invoke 
the hybrid hearing procedures by filing with the presiding officer a 
written request for oral argument under 10 CFR 2.1109. To be timely, 
the request must be filed together with a request for hearing/petition 
to intervene, filed in accordance with 10 CFR 2.309. If it is 
determined a hearing will be held, the presiding officer must grant a 
timely request for oral argument. The presiding officer may grant an 
untimely request for oral argument only upon a showing of good cause by 
the requesting party for the failure to file on time and after 
providing the other parties an opportunity to respond to the untimely 
request. If the presiding officer grants a request for oral argument, 
any hearing held on the application must be conducted in accordance 
with the hybrid hearing procedures. In essence, those procedures limit 
the time

[[Page 11570]]

available for discovery and require that an oral argument be held to 
determine whether any contentions must be resolved in an adjudicatory 
hearing. If no party to the proceeding timely requests oral argument, 
and if all untimely requests for oral argument are denied, then the 
usual procedures in 10 CFR Part 2, Subpart L apply.
    Petitions for leave to intervene must be filed no later than 60 
days from the date of publication of this notice. Non-timely filings 
will not be entertained absent a determination by the presiding officer 
that the petition or request should be granted or the contentions 
should be admitted, based on a balancing of the factors specified in 10 
CFR 2.309(c)(1)(i)-(viii).

V. Further Information

    Documents related to the proposed action are available 
electronically at the NRC's Electronic Reading Room at http://www.nrc.gov/reading-rm/adams.html. From this site, you can access the 
NRC's Agencywide Documents Access and Management System (ADAMS), which 
provides text and image files of NRC's public documents. Search for 
these documents using the ADAMS accession numbers: the application for 
amendment dated April 9, 2009, (ML091210251); and the publically-
available portions of the June 15, 2009, supplement (ML091680614), 
January 18, 2010, supplement (ML093430689). As discussed above in 
Section I., the January 18, 2010, supplement and a portion of the June 
15, 2009, supplement contain SUNSI and are not publically available. 
Instructions for requesting access to these withheld documents are 
contained in the following Order.
    If you do not have access to ADAMS or if there are problems in 
accessing the documents located in ADAMS, contact the NRC Public 
Document Room (PDR) reference staff at 1-800-397-4209, 301-415-4737 or 
by e-mail to <a href="/cdn-cgi/l/email-protection#3c4c584e124e594f53494e5f597c524e5f125b534a"><span class="__cf_email__" data-cfemail="7d0d190f530f180e12080f1e183d130f1e531a120b">[email protected]</span></a>. These documents may also be viewed 
electronically on the public computers located at the NRC's PDR at 
11555 Rockville Pike, Rockville, Maryland 20852. The PDR reproduction 
contractor will copy documents for a fee.
    Attorney for the licensee: David W. Jenkins, Assistant General 
Counsel, FirstEnergy Nuclear Operating Company, Mail Stop A-GO-18, 76 
South Main Street, Akron, OH 44308.

Order Imposing Procedures for Access to Sensitive Unclassified Non-
Safeguards Information for Contention Preparation

    A. This Order contains instructions regarding how potential parties 
to this proceeding may request access to documents containing Sensitive 
Unclassified Non-Safeguards Information (SUNSI).
    B. Within 10 days after publication of this notice of hearing and 
opportunity to petition for leave to intervene, any potential party who 
believes access to SUNSI is necessary to respond to this notice may 
request such access. A ``potential party'' is any person who intends to 
participate as a party by demonstrating standing and filing an 
admissible contention under 10 CFR 2.309. Requests for access to SUNSI 
submitted later than 10 days after publication will not be considered 
absent a showing of good cause for the late filing, addressing why the 
request could not have been filed earlier.
    C. The requester shall submit a letter requesting permission to 
access SUNSI to the Office of the Secretary, U.S. Nuclear Regulatory 
Commission, Washington, DC 20555-0001, Attention: Rulemakings and 
Adjudications Staff, and provide a copy to the Associate General 
Counsel for Hearings, Enforcement and Administration, Office of the 
General Counsel, Washington, DC 20555-0001. The expedited delivery or 
courier mail address for both offices is: U.S. Nuclear Regulatory 
Commission, 11555 Rockville Pike, Rockville, Maryland 20852. The e-mail 
address for the Office of the Secretary and the Office of the General 
Counsel are <a href="/cdn-cgi/l/email-protection" class="__cf_email__" data-cfemail="2068454152494e470e644f434b4554604e52430e474f56">[email protected]</a> and <a href="/cdn-cgi/l/email-protection#0f40484c626e66636c6a617b6a7d4f617d6c21686079"><span class="__cf_email__" data-cfemail="d8979f9bb5b9b1b4bbbdb6acbdaa98b6aabbf6bfb7ae">[email protected]</span></a>, 
respectively.\1\ The request must include the following information:
---------------------------------------------------------------------------

    \1\ While a request for hearing or petition to intervene in this 
proceeding must comply with the filing requirements of the NRC's 
``E-Filing Rule,'' the initial request to access SUNSI under these 
procedures should be submitted as described in this paragraph.
---------------------------------------------------------------------------

    (1) A description of the licensing action with a citation to this 
Federal Register notice;
    (2) The name and address of the potential party and a description 
of the potential party's particularized interest that could be harmed 
by the action identified in C.(1);
    (3) The identity of the individual or entity requesting access to 
SUNSI and the requester's basis for the need for the information in 
order to meaningfully participate in this adjudicatory proceeding. In 
particular, the request must explain why publicly-available versions of 
the information requested would not be sufficient to provide the basis 
and specificity for a proffered contention;
    D. Based on an evaluation of the information submitted under 
paragraph C.(3) the NRC staff will determine within 10 days of receipt 
of the request whether:
    (1) There is a reasonable basis to believe the petitioner is likely 
to establish standing to participate in this NRC proceeding; and
    (2) The requestor has established a legitimate need for access to 
SUNSI.
    E. If the NRC staff determines that the requestor satisfies both 
D.(1) and D.(2) above, the NRC staff will notify the requestor in 
writing that access to SUNSI has been granted. The written notification 
will contain instructions on how the requestor may obtain copies of the 
requested documents, and any other conditions that may apply to access 
to those documents. These conditions may include, but are not limited 
to, the signing of a Non-Disclosure Agreement or Affidavit, or 
Protective Order \2\ setting forth terms and conditions to prevent the 
unauthorized or inadvertent disclosure of SUNSI by each individual who 
will be granted access to SUNSI.
---------------------------------------------------------------------------

    \2\ Any motion for Protective Order or draft Non-Disclosure 
Affidavit or Agreement for SUNSI must be filed with the presiding 
officer or the Chief Administrative Judge if the presiding officer 
has not yet been designated, within 30 days of the deadline for the 
receipt of the written access request.
---------------------------------------------------------------------------

    F. Filing of Contentions. Any contentions in these proceedings that 
are based upon the information received as a result of the request made 
for SUNSI must be filed by the requestor no later than 25 days after 
the requestor is granted access to that information. However, if more 
than 25 days remain between the date the petitioner is granted access 
to the information and the deadline for filing all other contentions 
(as established in the notice of hearing or opportunity for hearing), 
the petitioner may file its SUNSI contentions by that later deadline.
    G. Review of Denials of Access.
    (1) If the request for access to SUNSI is denied by the NRC staff 
either after a determination on standing and need for access, or after 
a determination on trustworthiness and reliability, the NRC staff shall 
immediately notify the requestor in writing, briefly stating the reason 
or reasons for the denial.
    (2) The requester may challenge the NRC staff's adverse 
determination by filing a challenge within 5 days of receipt of that 
determination with: (a) The presiding officer designated in this 
proceeding; (b) if no presiding officer has been appointed, the Chief

[[Page 11571]]

Administrative Judge, or if he or she is unavailable, another 
administrative judge, or an administrative law judge with jurisdiction 
pursuant to 10 CFR 2.318(a); or (c) if another officer has been 
designated to rule on information access issues, with that officer.
    H. Review of Grants of Access. A party other than the requester may 
challenge an NRC staff determination granting access to SUNSI whose 
release would harm that party's interest independent of the proceeding. 
Such a challenge must be filed with the Chief Administrative Judge 
within 5 days of the notification by the NRC staff of its grant of 
access.
    If challenges to the NRC staff determinations are filed, these 
procedures give way to the normal process for litigating disputes 
concerning access to information. The availability of interlocutory 
review by the Commission of orders ruling on such NRC staff 
determinations (whether granting or denying access) is governed by 10 
CFR 2.311.\3\
---------------------------------------------------------------------------

    \3\ Requesters should note that the filing requirements of the 
NRC's E-Filing Rule (72 FR 49139; August 28, 2007) apply to appeals 
of NRC staff determinations (because they must be served on a 
presiding officer or the Commission, as applicable), but not to the 
initial SUNSI request submitted to the NRC staff under these 
procedures.
---------------------------------------------------------------------------

    I. The Commission expects that the NRC staff and presiding officers 
(and any other reviewing officers) will consider and resolve requests 
for access to SUNSI, and motions for protective orders, in a timely 
fashion in order to minimize any unnecessary delays in identifying 
those petitioners who have standing and who have propounded contentions 
meeting the specificity and basis requirements in 10 CFR Part 2. 
Attachment 1 to this Order summarizes the general target schedule for 
processing and resolving requests under these procedures.
    It is so ordered.

    Dated at Rockville, Maryland, this 5th day of March 2010.

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

   Attachment 1--General Target Schedule for Processing and Resolving
Requests for Access to Sensitive Unclassified Non-Safeguards Information
                           in This Proceeding
------------------------------------------------------------------------
          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) with information:
                         supporting the standing of a potential party
                         identified by name and address; describing the
                         need for the information in order for the
                         potential party to participate meaningfully in
                         an adjudicatory proceeding.
60....................  Deadline for submitting petition for
                         intervention containing: (i) Demonstration of
                         standing; (ii) all contentions whose
                         formulation does not require access to SUNSI
                         (+25 Answers to petition for intervention; +7
                         petitioner/requestor reply).
20....................  Nuclear Regulatory Commission (NRC) staff
                         informs the requester of the staff's
                         determination whether the request for access
                         provides a reasonable basis to believe standing
                         can be established and shows need for SUNSI.
                         (NRC staff also informs any party to the
                         proceeding whose interest independent of the
                         proceeding would be harmed by the release of
                         the information.) If NRC staff makes the
                         finding of need for SUNSI and likelihood of
                         standing, NRC staff begins document processing
                         (preparation of redactions or review of
                         redacted documents).
25....................  If NRC staff finds no ``need'' or no likelihood
                         of standing, the deadline for petitioner/
                         requester to file a motion seeking a ruling to
                         reverse the NRC staff's denial of access; NRC
                         staff files copy of access determination with
                         the presiding officer (or Chief Administrative
                         Judge or other designated officer, as
                         appropriate). If NRC staff finds ``need'' for
                         SUNSI, the deadline for any party to the
                         proceeding whose interest independent of the
                         proceeding would be harmed by the release of
                         the information to file a motion seeking a
                         ruling to reverse the NRC staff's grant of
                         access.
30....................  Deadline for NRC staff reply to motions to
                         reverse NRC staff determination(s).
40....................  (Receipt +30) If NRC staff finds standing and
                         need for SUNSI, deadline for NRC staff to
                         complete information processing and file motion
                         for Protective Order and draft Non-Disclosure
                         Affidavit. Deadline for applicant/licensee to
                         file Non-Disclosure Agreement for SUNSI.
A.....................  If access granted: Issuance of presiding officer
                         or other designated officer decision on motion
                         for protective order for access to sensitive
                         information (including schedule for providing
                         access and submission of contentions) or
                         decision reversing a final adverse
                         determination by the NRC staff.
A + 3.................  Deadline for filing executed Non-Disclosure
                         Affidavits. Access provided to SUNSI consistent
                         with decision issuing the protective order.
A + 28................  Deadline for submission of contentions whose
                         development depends upon access to SUNSI.
                         However, if more than 25 days remain between
                         the petitioner's receipt of (or access to) the
                         information and the deadline for filing all
                         other contentions (as established in the notice
                         of hearing or opportunity for hearing), the
                         petitioner may file its SUNSI contentions by
                         that later deadline.
A + 53................  (Contention receipt +25) Answers to contentions
                         whose development depends upon access to SUNSI.
A + 60................  (Answer receipt +7) Petitioner/Intervenor reply
                         to answers.
>A + 60...............  Decision on contention admission.
------------------------------------------------------------------------

[FR Doc. 2010-5252 Filed 3-10-10; 8:45 am]
BILLING CODE 7590-01-P


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