[Federal Register Volume 74, Number 145 (Thursday, July 30, 2009)]
[Notices]
[Pages 38052-38062]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-18012]


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NUCLEAR REGULATORY COMMISSION

[Docket No. 70-7015; CLI-09-15]


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; In the Matter of Areva Enrichment Services, LLC 
(Eagle Rock Enrichment Facility)

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

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 December 30, 2008, an application, 
safety analysis report, and environmental report from AREVA

[[Page 38053]]

Enrichment Services LLC (AES), for a license to possess and use source, 
byproduct, and special nuclear material and to enrich natural uranium 
to a maximum of 5 percent U-235 by the gas centrifuge process. The 
plant, to be known as the Eagle Rock Enrichment Facility (EREF), would 
be located in Bonneville County, Idaho. AES is a Delaware limited 
liability corporation and is a wholly owned subsidiary of AREVA NC 
Inc., which is a wholly owned subsidiary of AREVA NC SA, a part of 
AREVA SA, a corporation formed under the laws of France. On March 12, 
2009, the NRC staff notified AES, by letter, that staff had completed 
its acceptance review and had determined that the application was 
acceptable for formal review. On March 31, 2009, AES notified the NRC 
of its intent to revise the license application for the EREF to expand 
the capacity of the facility from 3.3 million separative work units 
(SWU) per year to 6.6 million SWU per year. Thereafter, on April 23, 
2009, AES filed a revised license application. On April 30, 2009, the 
NRC staff notified AES that its revised license application was 
accepted for review. On May 4, 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 
20508 (May 4, 2009).
    Copies of AES's application, safety analysis report, and 
environmental report (except for portions thereof subject to 
withholding from public inspection in accordance with 10 CFR 2.390, 
Availability of Public Records) are available for public inspection at 
the Commission's Public Document Room (PDR) at One White Flint North, 
11555 Rockville Pike, Rockville, Maryland 20852. These documents are 
also available for review and copying using any of the following 
methods: (1) Enter the NRC's Gas Centrifuge Enrichment Facility 
Licensing Web site at http://www.nrc.gov/materials/fuel-cycle-fac/gas-centrifuge.html#correspondence; (2) enter the NRC's Agencywide Document 
Access and Management System (ADAMS) at http://www.nrc.gov/reading-rm/adams.html, where the accession number for AES's application (including 
AES's safety analysis report and AES's environmental report) is 
ML090300658, and the accession number for the revised application is 
ML091210558; (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#2a5a4e586a445849044d455c"><span class="__cf_email__" data-cfemail="8bfbeff9cbe5f9e8a5ece4fd">[email protected]</span></a>. Hard copies of the documents are available from the PDR 
for a fee.
    As indicated above, the AES's initial and revised application has 
been accepted for docketing and formal review (ADAMS accession numbers 
ML090540516 and ML091210040) and, accordingly, the Commission is 
providing this notice of hearing and notice of opportunity to intervene 
on AES's application for a license to construct and operate a 
centrifuge enrichment facility. Pursuant to the Atomic Energy Act of 
1954, as amended (Act), the NRC staff will prepare a safety evaluation 
report (SER) after reviewing the application and 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 
environmental impact statement (EIS) before the hearing on the issuance 
of a license is completed. See Notice of Intent and Opportunity to 
Provide Written Comments AREVA Enrichment Services LLC Eagle Rock 
Enrichment Facility, Idaho Falls, ID, 74 FR20508 (May 4, 2009).
    In San Luis Obispo Mothers for Peace v. NRC, 449 F.3d 1016, 1028 
(9th Cir. 2006), cert. denied, 127 S. Ct. 1124 (2007), the United 
States Court of Appeals for the Ninth Circuit held that the NRC NEPA 
analysis performed as a result of an NRC licensing decision should 
consider the potential environmental consequences, if any, were a 
terrorist attack on the facility under review to occur. The Ninth 
Circuit's holding is in sharp contrast to the position the NRC has 
consistently taken with respect to this issue, i.e., that NEPA does not 
require the NRC to consider the environmental consequences of 
hypothetical terrorist attacks on NRC-licensed facilities. See AmerGen 
Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-07-08, 
65 NRC 124, 129 (2007). The Third Circuit recently upheld the NRC's 
approach. See New Jersey Dep't of Envtl. Prot. v. NRC, 561 F.3d 132 (3d 
Cir. 2009) (upholding the NRC's Oyster Creek decision). Nonetheless, as 
of this writing, the Commission remains bound by Ninth Circuit law 
when, as here, the agency is considering facilities located within the 
Ninth Circuit's jurisdiction. As the proposed location for the EREF is 
within the jurisdictional boundaries of the Ninth Circuit, the 
Commission is obligated to ensure that the EIS prepared by the NRC 
staff considers the NEPA-terrorism issue as mandated in San Luis Obispo 
Mothers for Peace, supra.
    Accordingly, in keeping with the Commission's directive in Pacific 
Gas & Electric Co., (Diablo Canyon Power Plant Independent Spent Fuel 
Storage Installation), CLI-07-11, 65 NRC 148 (2007),\1\ the Commission 
directs the NRC staff to address in the EIS the environmental impacts 
of a terrorist attack at the EREF. To the extent practicable, the NRC 
staff should base its environmental analysis on information available 
in agency records and other information on the EREF design, mitigative, 
and security arrangements bearing on likely environmental consequences, 
consistent with the requirements of NEPA, the Ninth Circuit's decision, 
and the regulations for the protection of sensitive and safeguards 
information.
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    \1\ In San Luis Obispo Mothers for Peace, the Ninth Circuit 
explicitly left to the Commission's discretion the manner in which 
the NRC reviews the NEPA-terrorism issues with respect to the NRC's 
consideration of the merits and procedural approach.
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    The NRC staff may rely, where appropriate, on qualitative rather 
than quantitative considerations. In addition, the NRC should rely on 
as much public information as practicable and make public as much of 
its environmental analysis as feasible recognizing, however, that it 
may prove necessary to withhold some facts underlying the staff's 
findings and conclusions as ``safeguards'' information, classified 
Restricted Data or National Security Information, or sensitive 
unclassified non-safeguards information. Further guidance on how the 
NRC treats NEPA-terrorism contentions is available in the Diablo Canyon 
docket. See, e.g., CLI-08-26, 68 NRC -- (Oct. 23, 2008); CLI-08-8, 67 
NRC 193 (2008); CLI-08-1, 67 NRC 1 (2008). The Diablo Canyon proceeding 
is again before the Ninth Circuit. See San Luis Obispo Mothers for 
Peace v. NRC, No. 08-75058 (9th Cir.).
    When available, the NRC staff's SER and EIS (except for portions 
thereof subject to withholding from public inspection in accordance 
with 10 CFR 2.390) will also be placed in the PDR and in ADAMS. Copies 
of correspondence between the NRC and AES, and transcripts of 
prehearing conferences and hearings (except for portions thereof 
subject to withholding from public inspection in accordance with 10 CFR 
2.390) similarly will be made available to the public.
    If, following the hearing, the Commission is satisfied that AES has 
complied with the Commission's regulations and the requirements of this 
Notice and Commission Order and the

[[Page 38054]]

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 
Eagle Rock Enrichment Facility; and (2) the receipt, possession, use, 
delivery, and transfer of byproduct (e.g., calibration sources), source 
and special nuclear material at the Eagle Rock Enrichment Facility. 
Prior to commencement of operations of the Eagle Rock Enrichment 
Facility, if it is licensed, in accordance with section 193(c) of the 
Act and 10 CFR 70.32(k), the NRC will verify through inspection that 
the facility has been constructed in accordance with the requirements 
of the license for such construction and operation. The inspection 
findings will be published in the Federal Register.

II. Notice of Hearing

    A. Pursuant to 10 CFR 70.23a and section 193 of the Act, as amended 
by the Solar, Wind, Waste, and Geothermal Power Production Incentives 
Act of 1990 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 Act. 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 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 September 28, 2009, 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 
Act to be made a party to the proceeding; (2) the nature and extent of 
the petitioner's property, financial, or other interest in the 
proceeding; and (3) the possible effect of any order that may be 
entered in the proceeding on the petitioner's interest.
    A petition for leave to intervene must also include a specification 
of the contentions that the petitioner seeks to have litigated in the 
hearing. For each contention, the petitioner must provide a specific 
statement of the issue of law or fact to be raised or controverted, as 
well as a brief explanation of the basis for the contention. 
Additionally, the petitioner must demonstrate that the issue raised by 
each contention is within the scope of the proceeding and is material 
to the findings the NRC must make to support the granting of a license 
in response to AES'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

[[Page 38055]]

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 
September 28, 2009. 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 Secretary of 
the Commission by September 28, 2009.

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, which the NRC promulgated on 
August 28, 2007 (72 FR 49139). 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#347c5155465d5a531a705b575f5140745a46571a535b42"><span class="__cf_email__" data-cfemail="367e5357445f5851187259555d53427658445518515940">[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\TM\ to access the Electronic Information Exchange (EIE), a 
component of the E-Filing system. The Workplace Forms Viewer\TM\ 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#6429372c204a3601170b11160701240a16074a030b12"><span class="__cf_email__" data-cfemail="88c5dbc0cca6daedfbe7fdfaebedc8e6faeba6efe7fe">[email protected]</span></a>.
    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. 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 December 28, 2009.

B. Novel Legal Issues

    If rulings on petitions, on admissibility of contentions, or the 
admitted contentions themselves, raise novel legal or policy questions, 
the Commission will provide early guidance and direction on the 
treatment and resolution of such issues. Accordingly, the Commission 
directs the 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.

[[Page 38056]]

    (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 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 FR41872 
(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 \2\ (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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    \2\ The Commission believes that, in the appropriate 
circumstances, allowing discovery or an evidentiary hearing with 
respect to safety-related issues to proceed before the final SER is 
issued will serve to further the Commission's objective, as 
reflected in the Statement of Policy on Conduct of Adjudicatory 
Proceedings, CLI-98-12, supra, to ensure a fair, prompt, and 
efficient resolution of contested issues. For example, it may be 
appropriate for the Board to permit discovery against the staff and/
or the commencement of an evidentiary hearing with respect to safety 
issues prior to the issuance of the final SER in cases where the 
applicant has responded to the Staff's ``open items'' and there is 
an appreciable lag time until the issuance of the final SER, or in 
cases where the initial SER identifies only a few open items.
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    (3) The Commission also believes that issuing a decision on the 
pending application within about two-and-one-half years may be 
reasonably achieved under the rules of practice contained in 10 CFR 
part 2 and the enhancements directed by this Order. We do not expect 
the 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.\3\
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    \3\ 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.

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Within September 28, 2009.........  Deadline for Requests for Hearing;
                                     Petitions to Intervene and
                                     Contentions; and Requests for
                                     Limited Participation.
Within October 28, 2009...........  Answers to Requests for Hearing;
                                     Petitions to Intervene and Request
                                     for Limited Participation.
Within November 9, 2009...........  Replies to Answers regarding
                                     Requests for Hearing; Petitions to
                                     Intervene and Request for Limited
                                     Participation.
Within November 27, 2009..........  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     Persons admitted or entities
 Board order determining             participating under 10 CFR 2.309(d)
 intervention.                       may submit a motion for
                                     reconsideration (see below, at
                                     Section VI.B).*
Within 20 days of the Licensing     Persons admitted or entities
 Board order determining             participating under 10 CFR 2.309(d)
 intervention.                       may respond to any motion for
                                     reconsideration.
Within 30 days of the Licensing     Staff prepares hearing file.
 Board 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   Motions to amend contentions;
 the final SER/EIS.                  motions for late-filed contentions.
Within 40 days of the issuance of   Completion of answers and replies to
 final SER/EIS.                      motions for amended and late-filed
                                     contentions.
                                    Completion of discovery on original
                                     contentions.

[[Page 38057]]

 
                                    Deadline for summary disposition
                                     motions on original contentions.**
Within 50 days of the issuance of   Licensing Board decision on
 the final SER/EIS.                  admissibility of late-filed
                                     contentions.**
Within 55 days of the issuance of   Licensing Board determination as to
 the final SER/EIS.                  whether resolution of any motion
                                     for summary disposition will serve
                                     to expedite the proceedings.
Within 65 days of the issuance of   Answers to motions for summary
 the final SER/EIS.                  disposition identified by Licensing
                                     Board.
Within 75 days of the issuance of   Replies to answers to motions for
 the final SER/EIS.                  summary disposition.
Within 80 days of the issuance of   Completion of discovery on late-
 final SER/EIS.                      filed contentions.
Within 105 days of the issuance of  Licensing Board decision on summary
 the final SER/EIS.                  disposition motions on original
                                     contentions.
Within 115 days of the issuance of  Direct testimony filed on original
 final SER/EIS.                      contentions and any amended or
                                     admitted late-filed contentions.
Within 125 days of the issuance of  Cross-examination plans filed on
 final SER/EIS.                      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 hearing on
 final SER/EIS.                      remaining contentions and any
                                     amended or admitted late-filed
                                     contentions.
Within 205 days of the issuance of  Completion of findings and replies.
 final SER/EIS.
Within 245 days of the issuance of  Licensing Board's initial
 final SER/EIS.                      decision.***
------------------------------------------------------------------------
* 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, in 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 Eagle Rock Enrichment Facility in 
accordance with the Atomic Energy Act of 1954, as amended. Section 
274c.(1) of the Act was amended by Public Law 102-486 (October 24, 
1992) to require the Commission to retain authority and responsibility 
for the regulation of uranium enrichment facilities. Therefore, in 
compliance with law, the Commission will be the sole licensing and 
regulatory authority with respect to byproduct, source, and special 
nuclear material for the Eagle Rock Enrichment Facility and with 
respect to the control and use of any equipment or device in connection 
therewith.
    Many rules and regulations in 10 CFR Chapter I are applicable to 
the licensing of a person to receive, possess, use, transfer, deliver, 
and process byproduct, source and special nuclear material in the 
quantities that would be possessed at the Eagle Rock Enrichment 
Facility. 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 fourth 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 Act, 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. AES'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

[[Page 38058]]

the disposition of depleted uranium hexafluoride tails (depleted tails) 
in these environmental documents, unless AES 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 a 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 AES 
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, AES must also address the health, safety, and 
security issues associated with the storage of depleted uranium tails 
on site pending removal of the tails from the site for disposal or DOE 
dispositioning.
2. Financial Qualifications
    Review of financial qualifications for enrichment facility license 
applications is governed by 10 CFR part 70. In Louisiana Energy 
Services (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 approved in 
that proceeding, which addressed a minimum equity contribution of 30% 
from the parents and affiliates of LES partners prior to construction 
of the associated capacity and having in place long term enrichment 
contracts with prices sufficient to cover both construction and 
operating costs, including a return on investment, for the entire term 
of the contracts prior to constructing or operating the facility, is 
one way to satisfy the requirements of 10 CFR part 70.
3. Antitrust Review
    Section 105 of the Act 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 AES enrichment facility, the 
application for which was filed after August 8, 2005, is subject to 
sections 53 and 63 of the Act, and is not a production or utilization 
facility within the meaning of section 105. Consequently, the NRC does 
not have antitrust responsibilities for AES. The NRC will not entertain 
or consider antitrust issues in connection with the AES application in 
this proceeding.
4. Foreign Ownership
    The AES application is governed by sections 53 and 63 of the Act, 
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 Act require, among other things, an 
affirmative finding by the Commission that issuance of a license for 
the Eagle Rock Enrichment Facility 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 Act, the creditor regulations in 10 
CFR 50.81 shall apply to the creation of creditor interests in 
equipment, devices, or important parts thereof, capable of separating 
the isotopes of uranium or enriching uranium in the isotope U-235. In 
addition, the creditor regulations in 10 CFR 70.44 shall apply to the 
creation of creditor interests in special nuclear material. These 
creditor regulations may be augmented by license conditions as 
necessary to allow ownership arrangements (such as sale and leaseback) 
not covered by 10 CFR 50.81, provided it can be found that such 
arrangements are not inimical to the common defense and security of the 
United States.
6. Classified Information
    All matters of classification of information related to the design, 
construction, operation, and safeguarding of the Eagle Rock Enrichment 
Facility 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 AES'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 
Breeda Reilly, Senior Project Manager, Advanced Fuel Cycle, Enrichment, 
and Uranium Conversion Branch. Telephone: (301) 492-3110.
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 of the 
date of the order on intervention

[[Page 38059]]

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 III.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. The intent of this Order is to make those requirements more 
specific to this proceeding; however, 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 as 
defined in 10 CFR 2.4 who believes access to SUNSI or SGI is necessary 
for a response to the notice may request access to SUNSI or SGI. A 
``potential party'' is any person who intends or may intend 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 and/or SGI 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#a0e8c5c1d2c9cec7e4cfc3cbc5d4e0ced2c38ec7cfd6"><span class="__cf_email__" data-cfemail="93dbf6f2e1fafdf4d7fcf0f8f6e7d3fde1f0bdf4fce5">[email protected]</span></a> and 
<a href="/cdn-cgi/l/email-protection#f5bab2b698949c9996909b819087b59b8796db929a83"><span class="__cf_email__" data-cfemail="672820240a060e0b0402091302152709150449000811">[email protected]</span></a>, respectively.\4\ The request must include the 
following information:
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    \4\ 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.
---------------------------------------------------------------------------

    (1) A description of the licensing action with a citation to this 
Federal Register notice of hearing and opportunity to petition for 
leave to intervene;
    (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 requestor believes that the information is 
necessary to enable the requestor to proffer and/or adjudicate a 
specific contention in this proceeding; \5\ and
---------------------------------------------------------------------------

    \5\ 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.
---------------------------------------------------------------------------

    (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 
requestor's trustworthiness and reliability. For security reasons, Form 
SF-85 can only be submitted electronically through the electronic 
questionnaire for investigations processing (e-QIP) Web site, a secure 
Web site that is owned and operated by the Office of Personnel 
Management. To obtain online access to the form, the requester should 
contact the NRC's Office of Administration at 301-492-3524.\6\
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    \6\ 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.
---------------------------------------------------------------------------

    (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 20555-001, by 
calling (301) 415-7232 or (301) 492-7311, or by e-mail to

[[Page 38060]]

<a href="/cdn-cgi/l/email-protection#9ed8f1ecf3edb0ccfbedf1ebecfdfbdef0ecfdb0f9f1e8"><span class="__cf_email__" data-cfemail="f5b39a879886dba790869a80879690b59b8796db929a83">[email protected]</span></a>. The fingerprint card will be used to satisfy 
the requirements of 10 CFR part 2, 10 CFR 73.22(b)(1), and section 149 
of the Atomic Energy Act of 1954, as amended, which mandates that all 
persons with access to SGI must be fingerprinted for an FBI 
identification and criminal history records check;
    (d) A check or money order payable in the amount of $ 200.00 \7\ to 
the U.S. Nuclear Regulatory Commission for each individual for whom the 
request for access has been submitted, and
---------------------------------------------------------------------------

    \7\ 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, as stated in 10 CFR 73.59, the requestor should 
also provide a statement specifically stating which exemption the 
requestor is invoking, and explaining the requestor's basis for 
believing that the exemption is applicable. While processing the 
request, the Office of Administration, Personnel Security Branch, will 
make a final determination whether the stated exemption applies. 
Alternatively, the requestor may contact the Office of Administration 
for an evaluation of their exemption status prior to submitting their 
request. Persons who are exempt from the background check are not 
required to complete the SF-85 or Form FD-258, however, all other 
requirements for access to SGI, including the need to know, are still 
applicable.

    Note: Copies of documents and materials required by paragraphs 
(C.4)(b), (c), and (d) of this Order must be sent to the following 
address:

Office of Administration, U.S. Nuclear Regulatory Commission, Personnel 
Security Branch, Mail Stop TWB-05-B32M, Washington, DC 20555-0012.
    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 
requestor should review all submitted materials for completeness and 
accuracy (including legibility) before submitting them to the NRC. The 
NRC will return incomplete packages to the sender without processing.
    E. Based on an evaluation of the information submitted under 
paragraphs (C.3) or (C.4) above, as applicable, the NRC staff will 
determine within 10 days of receipt of the written access request 
whether:
    (1) There is a reasonable basis to believe the petitioner is likely 
to establish standing to participate in this NRC proceeding; and
    (2) The requestor has established a legitimate need for access to 
SUNSI or need to know the SGI requested.
    F. For requests for access to SUNSI, if the NRC staff determines 
that the requestor satisfies both (E.1) and (E.2) above, the NRC staff 
will notify the requestor in writing that access to SUNSI has been 
granted. The written notification will contain instructions on how the 
requestor may obtain copies of the requested documents, and any other 
conditions that may apply to access to those documents. These 
conditions may include, but not be limited to, the signing of a Non-
Disclosure Agreement or Affidavit, or Protective Order \8\ setting 
forth terms and conditions to prevent the unauthorized or inadvertent 
disclosure of SUNSI by each individual who will be granted access to 
SUNSI.
---------------------------------------------------------------------------

    \8\ Any motion for Protective Order or draft Non-Disclosure 
Affidavit or Agreement for SUNSI must be filed with the presiding 
officer or the Chief Administrative Judge if the presiding officer 
has not yet been designated, within 30 days of the deadline for the 
receipt of the written access request.
---------------------------------------------------------------------------

    G. For requests for access to SGI, if the NRC staff determines that 
the requestor has satisfied both (E.1) and (E.2) above, the Office of 
Administration will then determine, based upon completion of the 
background check, whether the proposed recipient is trustworthy and 
reliable, as required for access to SGI by 10 CFR 73.22(b). If the 
Office of Administration determines that the individual or individuals 
are trustworthy and reliable, the NRC will promptly notify the 
requestor in writing. The notification will provide the names of 
approved individuals as well as the conditions under which the SGI will 
be provided. Those conditions may include, but not be limited to, the 
signing of a Non-Disclosure Agreement or Affidavit, or Protective Order 
\9\ by each individual who will be granted access to SGI.
---------------------------------------------------------------------------

    \9\ Any motion for Protective Order or draft Non-Disclosure 
Affidavit or Agreement for SGI must be filed with the presiding 
officer or the Chief Administrative Judge if the presiding officer 
has not yet been designated, within 180 days of the deadline for the 
receipt of the written access request.
---------------------------------------------------------------------------

    H. Release and Storage of SGI. Prior to providing SGI to the 
requestor, the NRC staff will conduct (as necessary) an inspection to 
confirm that the recipient's information protection system is 
sufficient to satisfy the requirements of 10 CFR 73.22. Alternatively, 
recipients may opt to view SGI at an approved SGI storage location 
rather than establish their own SGI protection program to meet SGI 
protection requirements.
    I. Filing of Contentions. Any contentions in these proceedings that 
are based upon the information received as a result of the request made 
for SUNSI or SGI must be filed by the requestor no later than 25 days 
after receipt of (or access to) that information. 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.
    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 need to know, 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 is provided an 
opportunity to correct or explain information.
    (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

[[Page 38061]]

granting access to SUNSI or SGI whose release would harm that party's 
interest independent of the proceeding. Such a challenge must be filed 
with the Chief Administrative Judge within 5 days of the notification 
by the NRC staff of its grant of access.
    If challenges to the NRC staff determinations are filed, these 
procedures give way to the normal process for litigating disputes 
concerning access to information. The availability of interlocutory 
review by the Commission of orders ruling on such NRC staff 
determinations (whether granting or denying access) is governed by 10 
CFR 2.311.\10\
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    \10\ As of October 15, 2007, the NRC's final ``E-Filing Rule'' 
became effective. See Use of Electronic Submissions in Agency 
Hearings (72 FR 49139; August 28, 2007). Requesters should note that 
the filing requirements of that rule 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 
requests submitted to the NRC staff under these procedures.
---------------------------------------------------------------------------

    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 23rd day of July 2009.

    For the Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
Chairman Gregory B. Jaczko, offering a separate statement:

    I support issuance of this Order in large part. I welcome the 
important and statutorily protected opportunity for interested members 
of the public to participate in our hearing process and to have their 
concerns heard. This notice begins that public process and is, 
therefore, an important milestone in that respect.
    I am, however, troubled by the tight schedule outlined in the 
Order. The timeframes outlined in the schedule are dependent upon 
reduced timeframes for the applicant to respond to staff's requests for 
additional information. While that may appear advantageous to the 
applicant, it actually disadvantages everyone--the applicant, the staff 
and the public--because we lose predictability. The agency has no 
control over either the timeliness or quality of the applicant's 
responses to requests for additional information. Moreover, I believe 
the numerous specific timeframes provided in the order are also 
unnecessary. With the milestones and specific timeframes already 
provided in part 2 of our regulations, the agency currently has the 
structure in place to ensure an efficient and effective hearing 
process, while still providing flexibility to adapt to the dynamic 
environment of adjudicatory hearings.
    Finally, I believe the order should be revised to reflect that the 
Commission, rather than the licensing board, should preside over the 
mandatory hearing. Gaining experience through this mandatory proceeding 
will aid the Commission in handling the mandatory hearings on new 
reactor proceedings required for licensing decisions which are on the 
horizon.

Commissioners Dale E. Klein and Kristine L. Svinicki, offering a 
further statement:

    We support issuance of this order, in its entirety. As noted in the 
U.S. NRC Strategic Plan, 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 drive to improve performance in government, 
coupled with increasing licensing workload, clearly indicates a need 
for the agency to become more effective and efficient in light of these 
demands. 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 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.

   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).

[[Page 38062]]

 
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
                               determination either before the presiding
                               officer or another designated officer.
A...........................  If access granted: Issuance of presiding
                               officer or other designated officer
                               decision on motion for protective order
                               for access to sensitive information
                               (including schedule for providing access
                               and submission of contentions) or
                               decision reversing a final adverse
                               determination by the NRC staff.
A + 3.......................  Deadline for filing executed Non-
                               Disclosure Affidavits. Access provided to
                               SUNSI and/or SGI consistent with decision
                               issuing the protective order.
A + 28......................  Deadline for submission of contentions
                               whose development depends upon access to
                               SUNSI and/or SGI. However, if more than
                               25 days remain between the petitioner's
                               receipt of (or access to) the information
                               and the deadline for filing all other
                               contentions (as established in the notice
                               of hearing or opportunity for hearing),
                               the petitioner may file its SUNSI or SGI
                               contentions by that later deadline.
A + 53......................  (Contention receipt +25) Answers to
                               contentions whose development depends
                               upon access to SUNSI and/or SGI.
A + 60......................  (Answer receipt +7) Petitioner/Intervenor
                               reply to answers.
>A + 60.....................  Decision on contention admission.
------------------------------------------------------------------------

[FR Doc. E9-18012 Filed 7-29-09; 8:45 am]
BILLING CODE 7590-01-P


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