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###### Nuclear Regulatory Commission

          - [NRC-2009-0434; Docket No. 40-1162]

# AGENCY:

U.S. Nuclear Regulatory Commission.

# ACTION:

Notice of consideration of a request from Western Nuclear Inc., for consent to indirect transfer of control over materials license SUA-56 and the opportunity to request a hearing.

# DATES:

A request for a hearing must be filed by November 2, 2009.

# FOR FURTHER INFORMATION CONTACT:

                        Richard Chang, Project Manager, Special Projects Branch, Division of Waste Management and Environmental Protection, Office of Federal and State Materials and Environmental Management Programs, U.S. Nuclear Regulatory Commission, Washington, DC 20555. Telephone: (301) 415-7188; fax number: (301) 415-5369; e-mail:                         *richard.chang@nrc.gov*.                    

# SUPPLEMENTARY INFORMATION:

## I. Introduction

The U.S. Nuclear Regulatory Commission (NRC) is considering an application from Western Nuclear Inc., (WNI or licensee), submitted on July 22, 2009, requesting approval of an indirect change of control with respect to its 10 CFR part 40 source materials license SUA-56. WNI's parent company, Phelps Dodge Corporation (PDC) (currently named Freeport-McMoRan Corporation), was previously acquired in a reverse triangular merger by Freeport-McMoRan Copper & Gold, Inc. (Freeport).

On March 19, 2007, Freeport acquired the entire interest in PDC, and Freeport now owns one hundred percent (100%) of PDC. This transaction resulted in the indirect transfer of control of WNI and license SUA-56 from PDC to Freeport. WNI is requesting that the NRC consent to this indirect change of control.

WNI's application states that, as a result of the 2007 transaction, there has been no change to the licensee's operations, and that its key operating personnel and licensed activities have remained the same. WNI has, and will continue to be, the holder of license SUA-56 after the approval of the indirect change of control. WNI will remain technically and financially qualified as the licensee and will continue to fulfill all responsibilities as the licensee.

Pursuant to 10 CFR 40.46, no source material license shall be transferred, assigned, or in any manner disposed of, either voluntarily or involuntarily, directly or indirectly, through transfer of control of the license to any person, unless the Commission, after securing full information, finds that the transfer is in accordance with the provisions of the Atomic Energy Act, and gives its consent in writing. An Environmental Assessment (EA) will not be performed for this proposed action because it falls within a class of actions categorically excluded from the requirement to perform an EA pursuant to 10 CFR 51.22(c)(21).

                    The NRC staff plans to approve the July 22, 2009, application by issuing the necessary order, along with a supporting safety evaluation report.                          ( print page 52511)    

## II. Opportunity to Request a Hearing

Any person whose interest may be affected if the July 22, 2009, application is approved, and who desires to participate as a party in an NRC adjudicatory hearing, must file a request for a hearing. The hearing request must include a specification of the contentions which the person seeks to have litigated in the hearing, and must be filed in accordance with the NRC E-Filing rule, which the NRC promulgated in August 2007, 72 FR 49139, (August 28, 2007). The E-Filing rule requires participants to submit and serve 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/requestor must contact the Office of the Secretary by e-mail at                     *HEARINGDOCKET@NRC.GOV*                    , or by calling (301) 415-1677, to request (1) A digital identification (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/requestor (or its counsel or representative) already holds an NRC-issued digital ID certificate). Each petitioner/requestor will need to download the Workplace Forms ViewerTM                     to access the Electronic Information Exchange (EIE), a component of the E-Filing system. The Workplace Forms ViewerTM                     is free and is available at                     *http://www.nrc.gov/​site-help/​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/requestor has obtained a digital ID certificate, had a docket created, and downloaded the EIE viewer, it 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 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 Standard 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 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 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 Meta-System Help Desk, which is available between 8 a.m. and 8 p.m., Eastern Time, Monday through Friday, excluding government holidays. The Meta-System Help Desk can be contacted by telephone at 1-866-672-7640 or by e-mail at                     *MSHD.Resource@nrc.gov*.                

Participants who believe that they have a good cause for not submitting documents electronically must file a motion, 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.

Non-timely requests and/or petitions and contentions will not be entertained absent a determination by the Commission, the presiding officer, or the Atomic Safety and Licensing Board that the petition and/or request should be granted and/or the contentions should be admitted based on a balancing of the factors specified in 10 CFR 2.309(c)(1)(i)-(viii). To be timely, filings must be submitted no later than 11:59 p.m. Eastern Standard Time on the due date.

                    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, an Atomic Safety and Licensing Board, or a Presiding Officer. Participants are requested not to include social security numbers in their filings. Copyrighted works, except for limited excerpts that serve the purpose of the adjudicatory filings and would constitute a Fair Use application, should not be included in the submission.                

The formal requirements for documents contained in 10 CFR 2.304(c)-(e) must be met. If the NRC grants an electronic document exemption in accordance with 10 CFR 2.302(g)(3), then the requirements for paper documents, set forth in 10 CFR 2.304(b) must be met.

In accordance with 10 CFR 2.309(b), a request for a hearing must be filed by November 2, 2009.

In addition to meeting other applicable requirements of 10 CFR 2.309, a request for a hearing filed by a person other than an applicant must state:

1. The name, address, and telephone number of the requestor;

2. The nature of the requestor's right under the Act to be made a party to the proceeding;

3. The nature and extent of the requestor's property, financial or other interest in the proceeding;

4. The possible effect of any decision or order that may be issued in the proceeding on the requestor's interest; and

5. The circumstances establishing that the request for a hearing is timely in accordance with 10 CFR 2.309(b).

In accordance with 10 CFR 2.309(f)(1), a request for hearing or petitions for leave to intervene must set forth with particularity the contentions sought to be raised. For each contention, the request or petition must:

1. Provide a specific statement of the issue of law or fact to be raised or controverted;

2. Provide a brief explanation of the basis for the contention;

3. Demonstrate that the issue raised in the contention is within the scope of the proceeding;

                    4. Demonstrate that the issue raised in the contention is material to the findings that the NRC must make to                           ( print page 52512)                        support the action that is involved in the proceeding;                

5. Provide a concise statement of the alleged facts or expert opinions which support the requestor's/petitioner's position on the issue and on which the requestor/petitioner intends to rely to support its position on the issue; and

6. Provide sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact. This information must include references to specific portions of the application that the requestor/petitioner disputes and the supporting reasons for each dispute, or, if the requestor/petitioner believes 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 requestor's/petitioner's belief.

In addition, in accordance with 10 CFR 2.309(f)(2), contentions must be based on documents or other information available at the time the petition is to be filed, such as the application, or other supporting document filed by an applicant or licensee, or otherwise available to the petitioner. Contentions may be amended or new contentions filed after the initial filing only with leave of the presiding officer.

Requestors/petitioners should, when possible, consult with each other in preparing contentions and combine similar subject matter concerns into a joint contention, for which one of the co-sponsoring requestors/petitioners is designated the lead representative. Further, in accordance with 10 CFR 2.309(f)(3), any requestor/petitioner that wishes to adopt a contention proposed by another requestor/petitioner must do so, in accordance with the E-Filing rule, within ten days of the date the contention is filed, and designate a representative who shall have the authority to act for the requestor/petitioner.

As indicated below, pursuant to 10 CFR 2.310(g), any hearing would be subject to the procedures set forth in 10 CFR part 2, subpart M.

## III. Opportunity To Provide Written Comments

                    Within 30 days from the date of publication of this notice, persons may submit written comments regarding the license transfer application, as provided for in 10 CFR 2.1305. The Commission will consider and, if appropriate, respond to these comments, but such comments will not otherwise constitute part of the decisional record. Comments should be submitted to the Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemakings and Adjudications Staff, and should cite the publication date and page number of this                     **Federal Register**                     notice. Comments received after 30 days will be considered if practicable to do so, but only those comments received on or before the due date can be assured consideration.                

## IV. Further Information

                    For further details with respect to the proposed action, see the NRC's letter to the licensee dated June 22, 2009 (See ADAMS ML091550317), the licensee's letter dated July 22, 2009 (See ADAMS ML092100253), a letter from NRC to the licensee dated August 13, 2009, accepting the Application for formal review (See ADAMS ML092100480), a transmittal letter dated March 27, 2009, and affidavit requesting that the financial information provided to NRC be withheld from the public pursuant to NRC regulation 10 CFR 2.390 (See ADAMS ML092260137). Additional background information is contained in letters dated March 12, 2007 (See ADAMS ML071080087), and September 5, 2007 (See ADAMS ML072710031). The documents referenced above are available for public inspection, and can be copied for a fee, at the U.S. Nuclear Regulatory Commission's Public Document Room (PDR), located at One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland 20852. The NRC maintains an Agency-wide Documents Access and Management System (ADAMS), which provides text and image files of NRC's public documents. These documents may be accessed through the NRC's Public Electronic Reading Room on the Internet at                     *http://www.nrc.gov*.                

                    Persons who do not have access to ADAMS or who have problems in accessing the documents located in ADAMS may contact the PDR reference staff at 1-800-397-4209, 301-415-4737 or by e-mail at                     *pdr.resource@nrc.gov*.                

Dated at Rockville, Maryland, this 5th day of October 2009.

For the Nuclear Regulatory Commission.

Keith I. McConnell,

Deputy Director, Decommissioning and Uranium Recovery Licensing Directorate, Division of Waste Management and Environmental Protection, Office of Federal and State Materials and Environmental Management Programs.

[FR Doc. E9-24564 Filed 10-9-09; 8:45 am]

BILLING CODE 7590-01-P