38052 Federal Register / Vol. 74, No. 145 / Thursday, July 30, 2009 / Notices 

items). Records of the Office of Policy 

and Government Affairs, including such 

records as administrative files, files 

relating to budget and contract matters, 

drafts of reports, toll facilities files, files 

relating to the highway trust fund, Web 

site versions of published highway 

statistics, and research program files. 

Proposed for permanent retention are 

such records as published highway 

statistics, reports on the status of 

highways, bridges, and transit submitted 

to Congress, master files of electronic 

information systems relating to highway 

system performance, files relating to 

foreign highway projects, and master 

files of an electronic system relating to 

motor fuel and highway finance. 

16. Department of Transportation, 

Federal Highway Administration (N1– 

406–09–6, 79 items, 73 temporary 

items). Records of the Office of 

Planning, Environment, and Realty, 

including such records as files relating 

to routine administrative activities, air 

quality analyses, right-of-way records, 

files relating to civil rights activities, 

property management files, 

environmental impact records, noise 

files, records relating to the payback 

program, project files, research files, 

airport access records, urban planning 

files, and public transportation files. 

Proposed for permanent retention are 

such records as air quality program files, 

annual reports, policy files, and 

speeches made by high officials. 

17. Department of Transportation, 

Federal Highway Administration (N1– 

406–09–11, 2 items, 2 temporary items). 

Applications for Federal credit 

assistance submitted under the 

Transportation Infrastructure Finance 

and Innovation Act of 1998. 

18. Department of the Treasury, 

Alcohol and Tobacco Tax and Trade 

Bureau (N1–564–09–2, 1 item, 1 

temporary item). Master files of an 

electronic information system used to 

track agency accountable personal 

property. 

19. Department of the Treasury, 

Alcohol and Tobacco Tax and Trade 

Bureau (N1–564–09–12, 2 items, 2 

temporary items). Master files of an 

internet-based electronic system which 

allows industry members to apply online for certificates of label approval. 

20. Department of the Treasury, 

Bureau of Engraving and Printing (N1– 

318–09–1, 3 items, 3 temporary items). 

Daily production records and other 

records relating to day-to-day operations 

and product accountability. 

21. Department of the Treasury, 

Internal Revenue Service (N1–58–09– 

34, 3 items, 3 temporary items). Inputs, 

outputs, and master files of an 

electronic information system used to 

identify forms missing from 

electronically filed tax returns. 

22. Department of the Treasury, 

Internal Revenue Service (N1–58–09– 

35, 3 items, 3 temporary items). Inputs, 

outputs, and master files of an 

electronic information system that 

contains employee performance data. 

23. Department of the Treasury, 

Internal Revenue Service (N1–58–09– 

36, 3 items, 3 temporary items). Inputs, 

outputs, and master files of an 

electronic information system that 

contains earned income tax credit data. 

24. Department of the Treasury, 

Internal Revenue Service (N1–58–09– 

42, 4 items, 4 temporary items). 

Fingerprint cards and professional 

credentials provided by tax 

professionals who apply for 

authorization to transmit tax return 

information to the agency on behalf of 

taxpayers. 

25. Department of the Treasury, 

Internal Revenue Service (N1–58–09– 

43, 1 item, 1 temporary item). Data 

contained in an electronic system used 

to transmit sensitive tax-related 

information that cannot be transmitted 

using regular electronic mail. 

26. Department of the Treasury, Office 

of Thrift Supervision (N1–483–09–1, 3 

items, 3 temporary items). Master files 

of an electronic information system that 

is used to store employee contact 

information and deliver emergency 

communications to staff. 

27. Agency for International 

Development, Bureau of Global Health 

(N1–286–09–2, 1 item, 1 temporary 

item). Data contained in an electronic 

information system used to track the 

expenditure of funds, including a 

module with data on the funding of 

projects relating to HIV/AIDS. 

28. National Archives and Records 

Administration, Office of Presidential 

Libraries (N1–64–09–5, 1 item, 1 

temporary item). Data contained in an 

electronic system pertaining to visits, 

tours, and events at Presidential library 

museums. 

29. National Archives and Records 

Administration, Office of Regional 

Records Services (N1–64–08–10, 21 

items, 20 temporary items). Records 

relating to operations and 

administration of records centers, 

regional archives, and records 

management services, including files 

relating to such matters as the collection 

and expenditure of funds, outreach 

activities, the operation of records 

centers, and records processing 

activities. Proposed for permanent 

retention are program records 

accumulated by Regional 

Administrators. 

Dated: July 27, 2009. 

Michael J. Kurtz. 

Assistant Archivist for Records Services— 

Washington, DC. 

[FR Doc. E9–18312 Filed 7–29–09; 8:45 am] 

BILLING CODE 7515–01–P 

NATIONAL SCIENCE FOUNDATION 

Notice of Permits Denied Under the 

Antarctic Conservation Act of 1978 

AGENCY: National Science Foundation. 

ACTION: Notice of permits denied under 

the Antarctic Conservation Act of 1978, 

Public Law 95–541. 

SUMMARY: The National Science 

Foundation (NSF) is required to publish 

notice of permits denied under the 

Antarctic Conservation Act of 1978. 

This is the required notice. 

FOR FURTHER INFORMATION CONTACT: 

Nadene G. Kennedy, Permit Office, 

Office of Polar Programs, Rm. 755, 

National Science Foundation, 4201 

Wilson Boulevard, Arlington, VA 22230. 

SUPPLEMENTARY INFORMATION: On May 1, 

2009, the National Science Foundation 

published a notice in the Federal 

Register of a permit application 

received. The permit application from 

Stacy Kim was denied on July 23, 2009. 

Nadene G. Kennedy, 

Permit Officer. 

[FR Doc. E9–18107 Filed 7–29–09; 8:45 am] 

BILLING CODE 7555–01–P 

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 


erowe on DSK5CLS3C1PROD with NOTICES
Federal Register / Vol. 74, No. 145 / Thursday, July 30, 2009 / Notices 38053 

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. 

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 pdr@nrc.gov. 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. 

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 NEPAterrorism contentions is available in the 

Diablo Canyon docket. See, e.g., CLI– 

08–26, 68 NRC l (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 


erowe on DSK5CLS3C1PROD with NOTICES
38054 Federal Register / Vol. 74, No. 145 / Thursday, July 30, 2009 / Notices 

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, § 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 crossexamination 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 


erowe on DSK5CLS3C1PROD with NOTICES
Federal Register / Vol. 74, No. 145 / Thursday, July 30, 2009 / Notices 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 Federallyrecognized 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 

Hearing.Docket@nrc.gov, 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 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/sitehelp/esubmittals/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/applycertificates.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/esubmittals.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/sitehelp/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 email to the NRC electronic filing Help 

Desk at MSHD.Resource@nrc.gov. 

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. 


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38056 Federal Register / Vol. 74, No. 145 / Thursday, July 30, 2009 / Notices 

2The 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. 

3This 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. 

(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 281⁄2

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 SER2 (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. 

(3) The Commission also believes that 

issuing a decision on the pending 

application within about two-and-onehalf 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

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 conference ......................... Licensing Board issues order determining intervention. 

Discovery commences, except against the Staff. 

Within 10 days of the Licensing Board order determining 

intervention.

Persons admitted or entities participating under 10 CFR 2.309(d) may submit a motion for reconsideration (see below, at Section VI.B).* 

Within 20 days of the Licensing Board order determining 

intervention.

Persons admitted or entities participating under 10 CFR 2.309(d) may respond to 

any motion for reconsideration. 

Within 30 days of the Licensing Board decision determining intervention.Staff prepares hearing file. 

Date of issuance of final SER/EIS ..................................... Staff updates hearing file. 

Discovery commences against the Staff. 

Within 20 days of the issuance of the final SER/EIS ........ Motions to amend contentions; motions for late-filed contentions. 

Within 40 days of the issuance of final SER/EIS .............. Completion of answers and replies to motions for amended and late-filed contentions. 

Completion of discovery on original contentions. 


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Deadline for summary disposition motions on original contentions.** 

Within 50 days of the issuance of the final SER/EIS ........ Licensing Board decision on admissibility of late-filed contentions.** 

Within 55 days of the issuance of the final SER/EIS ........ Licensing Board determination as to whether resolution of any motion for summary 

disposition will serve to expedite the proceedings. 

Within 65 days of the issuance of the final SER/EIS ........ Answers to motions for summary disposition identified by Licensing Board. 

Within 75 days of the issuance of the final SER/EIS ........ Replies to answers to motions for summary disposition. 

Within 80 days of the issuance of final SER/EIS .............. Completion of discovery on late-filed contentions. 

Within 105 days of the issuance of the final SER/EIS ...... Licensing Board decision on summary disposition motions on original contentions. 

Within 115 days of the issuance of final SER/EIS ............ Direct testimony filed on original contentions and any amended or admitted late-filed 

contentions. 

Within 125 days of the issuance of final SER/EIS ............ Cross-examination plans filed on original contentions and any amended or admitted 

late-filed contentions. 

Within 135 days of the issuance of final SER/EIS ............ Evidentiary hearing begins on original contentions and any amended or admitted 

late-filed contentions. 

Within 160 days of the issuance of final SER/EIS ............ Completion of evidentiary hearing on remaining contentions and any amended or admitted late-filed contentions. 

Within 205 days of the issuance of final SER/EIS ............ Completion of findings and replies. 

Within 245 days of the issuance of final SER/EIS ............ Licensing Board’s initial 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 281⁄2 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 

281⁄2 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 


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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 


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4While 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. 

5Broad 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. 

6The 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. 

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 NonSafeguards 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 

HearingDocket@nrc.gov and 

OGCmailcenter@nrc.gov, respectively.4

The request must include the following 

information: 

(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 

(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

(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 


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7This fee is subject to change pursuant to the 

Office of Personnel Management’s adjustable billing 

rates. 

8Any motion for Protective Order or draft NonDisclosure 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. 

9Any motion for Protective Order or draft NonDisclosure 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. 

Forms.Resource@nrc.gov. 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 

(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. 

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. 

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 


erowe on DSK5CLS3C1PROD with NOTICES
Federal Register / Vol. 74, No. 145 / Thursday, July 30, 2009 / Notices 38061 

10As of October 15, 2007, the NRC’s final ‘‘EFiling 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. 

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

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). 


erowe on DSK5CLS3C1PROD with NOTICES
38062 Federal Register / Vol. 74, No. 145 / Thursday, July 30, 2009 / Notices 

ATTACHMENT 1—GENERAL TARGET SCHEDULE FOR PROCESSING AND RESOLVING REQUESTS FOR ACCESS TO SENSITIVE

UNCLASSIFIED NON-SAFEGUARDS INFORMATION AND SAFEGUARDS INFORMATION IN THIS PROCEEDING—Continued 

Day Event/Activity 

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 

NUCLEAR REGULATORY 

COMMISSION 

[Docket No. 030–35114; License No. 12– 

16559–02; EA–08–334; (NRC–2009–0332)] 

In the Matter of MISTRAS Holding 

Group, d/b/a: Conam Inspection and 

Engineering Services, Quality Services 

Laboratories, Inc., Burr Ridge, IL; 

Order Imposing Civil Monetary Penalty 

I 

MISTRAS Holding Group, doing 

business as Conam Inspection and 

Engineering Services, Inc. and Quality 

Services Laboratories, Inc. (MISTRAS or 

Licensee) is the holder of Materials 

License No. 12–16559–02 issued by the 

U.S. Nuclear Regulatory Commission 

(NRC or Commission) pursuant to 10 

CFR part 30 on August 31, 1999. The 

license authorizes MISTRAS to conduct 

radiography operations in locations 

within the NRC’s jurisdiction. 

II 

An inspection of the Licensee’s 

activities was conducted on September 

22 and 23, 2008, at its Noblesville, 

Indiana office. The results of this 

inspection indicated that the Licensee 

had not conducted its activities in full 

compliance with NRC requirements. A 

written Notice of Violation and 

Proposed Imposition of Civil Penalty 

(Notice) was served upon the Licensee 

by letter dated March 9, 2009 (the letter 

is Not Publicly Available). The Notice 

states the nature of the violations, the 

provisions of the NRC’s requirements 

that the Licensee violated, and the 

amount of the civil penalties proposed 

for the violations. 

The Licensee responded to the Notice 

in a letter dated March 24, 2009 (also 

Not Publicly Available). In its response, 

the Licensee, although neither admitting 

nor denying the violations, requested 

mitigation for the civil penalty 

associated with one of the violations. 

III 

After consideration of the Licensee’s 

response and the statements of fact, 

explanation, and argument for 

mitigation contained therein, the NRC 

staff determined that the violation 

occurred as stated and that the penalty 

proposed for the violation should be 

imposed. The results of the NRC’s 

review of the information contained in 

the Licensee’s letter and the basis for the 

NRC taking the actions described in this 

Order are set forth in the non-Public 

Appendix to this Order. 

IV 

In view of the foregoing and pursuant 

to Section 234 of the Atomic Energy Act 

of 1954, as amended (Act), 42 U.S.C. 

2282, and 10 CFR 2.205, it is hereby 

ordered that: 

The Licensee shall pay, within 20 

days from the date this Order is 

published in the Federal Register, a 

civil penalty in the amount of $6,500, in 

accordance with NUREG/BR–0254. In 

addition, at the time payment is made, 

the Licensee shall submit a statement 

indicating when and by what method 

payment was made to the Director, 

Office of Enforcement, U.S. Nuclear 

Regulatory Commission, One White 


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