[Federal Register Volume 87, Number 22 (Wednesday, February 2, 2022)]
[Notices]
[Pages 5851-5866]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-01983]
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NUCLEAR REGULATORY COMMISSION
[Docket No. 52-026; NRC-2008-0252]
Vogtle Electric Generating Plant, Unit 4; Hearing Opportunity
Associated With Inspections, Tests, Analyses, and Acceptance Criteria
AGENCY: Nuclear Regulatory Commission.
ACTION: Notice of intended operation; opportunity for hearing on
conformance with the acceptance criteria in the combined license; and
associated orders.
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SUMMARY: By letter dated January 18, 2022, Southern Nuclear Operating
Company (SNC) informed the U.S. Nuclear Regulatory Commission (NRC)
that its scheduled date for initial loading of fuel into the reactor
for Vogtle Electric Generating Plant (VEGP) Unit 4 is September 2,
2022. The Atomic Energy Act of 1954, as amended (AEA), and NRC
regulations provide the public with an opportunity to request a hearing
regarding the licensee's conformance with the acceptance criteria in
the combined license (COL) for the facility. This document announces
the public's opportunity to request a hearing and includes orders
imposing procedures for the hearing process.
DATES: A request for a hearing must be filed by April 4, 2022. Any
potential party as defined in section 2.4 of title 10 of the Code of
Federal Regulations (10 CFR), who believes access to Sensitive
Unclassified Non-Safeguards Information (SUNSI) or Safeguards
Information (SGI) is necessary for contention preparation must request
access by February 14, 2022.
ADDRESSES: Please refer to Docket ID NRC-2008-0252 or NRC Docket No.
52-026 when contacting the NRC about the availability of information
regarding this document. You may obtain publicly available information
related to this document using any of the following methods:
Federal Rulemaking Website: Go to https://www.regulations.gov and search for Docket ID NRC-2008-0252. Address
questions about Docket IDs in Regulations.gov to Stacy Schumann;
telephone: 301-415-0624; email: [email protected]. For technical
questions, contact the individual listed in the FOR FURTHER INFORMATION
CONTACT section of this document.
NRC's Agencywide Documents Access and Management System
(ADAMS): You may obtain publicly available documents online in the
ADAMS Public Documents collection at https://www.nrc.gov/reading-rm/adams.html. To begin the search, select ``Begin Web-based ADAMS
Search.'' For problems with ADAMS, please contact the NRC's Public
Document Room (PDR) reference staff at 1-800-397-4209, 301-415-4737, or
by email to [email protected]. The ADAMS accession number for each
document referenced (if it is available in ADAMS) is provided the first
time that it is mentioned in this document.
NRC's PDR: You may examine and purchase copies of public
documents, by appointment, at the NRC's PDR, Room P1 B35, One White
Flint North, 11555 Rockville Pike, Rockville, Maryland 20852. To make
an appointment to visit the PDR, please send an email to
[email protected] or call 1-800-397-4209 or 301-415-4737, between
8:00 a.m. and 4:00 p.m. (ET), Monday through Friday, except Federal
holidays.
The inspections, tests, analyses, and acceptance criteria (ITAAC)
for this COL, the licensee's ITAAC closure notifications, uncompleted
ITAAC notifications, and ITAAC post-closure notifications; associated
NRC inspection and review documents; and other supporting documents
pertaining to ITAAC closure for VEGP Unit 4 are available
electronically at https://www.nrc.gov/reactors/new-reactors/col-holder/vog4.html.
FOR FURTHER INFORMATION CONTACT: Cayetano Santos, U.S. Nuclear
Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-
7270, email: [email protected].
SUPPLEMENTARY INFORMATION:
I. Introduction
Pursuant to the AEA, and the regulations in 10 CFR part 2, ``Agency
Rules of Practice and Procedure,'' and 10 CFR part 52, ``Licenses,
Certifications, and Approvals for Nuclear Power Plants,'' notice is
hereby given that (1) the licensee intends to operate VEGP Unit 4; (2)
the NRC is considering whether to find that the acceptance criteria in
the COL are met; and (3) interested persons have an opportunity to
request a hearing regarding conformance with the acceptance criteria.
This notice is accompanied by an ``Order Imposing Additional Procedures
for ITAAC Hearings Before a Commission Ruling on the Hearing Request''
(Additional Procedures Order) and an ``Order Imposing Procedures for
Access to Sensitive Unclassified Non-Safeguards Information [SUNSI] and
Safeguards Information [SGI] for Contention Preparation'' (SUNSI-SGI
Access Order).
A. Information on SNC's Intent To Operate VEGP Unit 4 and on the
Hearing Opportunity Associated With Facility Operation
SNC was issued a COL for VEGP Unit 4 on February 10, 2012. Under
the provisions of Section 185b. of the AEA and NRC regulations in 10
CFR 52.97(b), ITAAC are included in a COL for the purpose of
establishing a means to verify whether the facility has been
constructed and will be operated in conformance with the license, the
AEA, and NRC rules and regulations. The ITAAC are included as Appendix
C to the COL. Section 185b. of the AEA requires that, after issuance of
the COL, the Commission shall ensure that the prescribed inspections,
tests, and analyses are performed and, prior to operation of the
facility, shall find that the prescribed acceptance criteria are met.
This AEA requirement is also set forth in 10 CFR 52.103(g), which
expressly provides that operation of the facility may not begin unless
and until the NRC finds that the acceptance criteria for all ITAAC are
met as required by 10 CFR 52.103(g). Once the 10 CFR 52.103(g) finding
is made, the licensee may proceed to the operational phase, which
includes initial fuel load.
The NRC is considering whether to make the 10 CFR 52.103(g) finding
that the acceptance criteria for all ITAAC are met. Prior to making
this finding, Section 189a.(1)(B)(i) of the AEA provides that the NRC
shall publish in the Federal Register a notice of intended operation
that shall provide that any person whose interest may be affected by
operation of the plant may within 60 days request the Commission to
hold a hearing on whether the facility as constructed complies, or on
completion will comply, with the acceptance criteria of the license. In
the licensee's notification dated January 18, 2022 (ADAMS Accession No.
ML22018A075), the licensee informed the NRC that its scheduled date for
initial loading of fuel into the reactor is September 2, 2022.
[[Page 5852]]
B. Information on SNC's Completion of ITAAC
For every ITAAC, the licensee is required by 10 CFR 52.99(c)(1) to
submit to the NRC an ITAAC closure notification explaining the
licensee's basis for concluding that the inspections, tests, and
analyses have been performed and that the acceptance criteria are met.
These ITAAC closure notifications are submitted throughout construction
as ITAAC are completed. If an event occurring after the submission of
an ITAAC closure notification materially alters the basis for
determining that the inspections, tests, and analyses were successfully
performed or that the acceptance criteria are met, then the licensee is
required by 10 CFR 52.99(c)(2) to submit an ITAAC post-closure
notification documenting its successful resolution of the issue. The
licensee must also notify the NRC when all ITAAC are complete as
required by 10 CFR 52.99(c)(4). These notifications, together with the
results of the NRC's inspection process, serve as the basis for the
NRC's finding regarding whether the acceptance criteria in the COL are
met.
One other required notification, the uncompleted ITAAC
notification, must be submitted at least 225 days before scheduled
initial fuel load and must provide sufficient information, including
the specific procedures and analytical methods to be used in performing
the ITAAC, to demonstrate that the uncompleted inspections, tests, and
analyses will be performed and the corresponding acceptance criteria
will be met. 10 CFR 52.99(c)(3). The licensee has submitted the
uncompleted ITAAC notifications, and these notifications cover all
ITAAC not completed as of 225 days prior to scheduled fuel load.\1\
These uncompleted ITAAC notifications provide information to members of
the public for the purposes of requesting a hearing and submitting
contentions on uncompleted ITAAC within the required time frames. In
the final rule entitled ``Licenses, Certifications, and Approvals for
Nuclear Power Plants'' (72 FR 49367; August 28, 2007), the Commission
stated that it ``expects that any contentions submitted by prospective
parties regarding uncompleted ITAAC would focus on any inadequacies of
the specific procedures and analytical methods described by the
licensee'' in its uncompleted ITAAC notification.
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\1\ The licensee's cover letter for the uncompleted ITAAC
notifications is available at ADAMS Accession No. ML22018A075.
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Members of the public must submit hearing requests by the deadline
specified in this notice, and the hearing request must address any
deficiencies with respect to uncompleted ITAAC based on the information
available to the petitioner, including the uncompleted ITAAC
notifications required by 10 CFR 52.99(c)(3).\2\ Members of the public
may not defer the submission of hearing requests or contentions because
there are ITAAC that have not yet been completed. The licensee must
submit an ITAAC closure notification pursuant to 10 CFR 52.99(c)(1)
after it completes these uncompleted ITAAC.
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\2\ As used in this notice and in the associated orders, the
term ``petitioner'' refers to any person who (1) is contemplating
the filing of a hearing request, (2) has filed a hearing request but
is not admitted as a party to this proceeding, or (3) has had a
hearing request granted.
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The supporting documents pertaining to ITAAC closure for VEGP Unit
4 are available electronically at https://www.nrc.gov/reactors/new-reactors/col-holder/vog4.html. These include the ITAAC and the
licensee's ITAAC closure notifications, uncompleted ITAAC
notifications, and any ITAAC post-closure notifications. The licensee
has not yet submitted the 10 CFR 52.99(c)(4) ``all ITAAC complete
notification'' required under 10 CFR 52.99(c)(4). This notification
will be included at https://www.nrc.gov/reactors/new-reactors/col-holder/vog4.html when it is submitted. If a petitioner wishes to
compare a subsequent ITAAC closure notification with an earlier
uncompleted ITAAC notification on the same ITAAC, then the petitioner
should first locate the ITAAC index number for that ITAAC in the ITAAC
closure notification. ITAAC index numbers run from 1 to 881.\3\ Then,
the petitioner should access the ITAAC Status Report, available at
https://www.nrc.gov/reactors/new-reactors/col-holder/vog4.html, and
locate the ITAAC index number entry in the report. Each ITAAC index
number entry includes links to ITAAC notifications associated with that
ITAAC, including the uncompleted ITAAC notifications and the ITAAC
closure notifications.\4\
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\3\ Because ITAAC have been deleted and consolidated through
license amendments, there are fewer than 881 ITAAC in the COL.
\4\ To reduce burdens on petitioners, the NRC staff has
streamlined the ITAAC Status Report by removing those ITAAC
notifications that have been entirely superseded by later ITAAC
notifications on the same ITAAC. These superseded ITAAC
notifications are still available in ADAMS.
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The ITAAC Status Report also includes links to NRC inspection
reports and ITAAC Closure Verification Evaluation Forms generated by
the NRC staff and citations to periodically issued Federal Register
notices of the NRC staff's determinations that certain inspections,
tests, and analyses have been successfully completed. The NRC staff
determinations made in these documents are interim determinations that
do not become final unless and until the NRC makes the 10 CFR 52.103(g)
finding at the end of construction that all acceptance criteria are
met. The 10 CFR 52.103(g) finding, which will be made by the Director
of the Office of Nuclear Reactor Regulation (NRR) if all the acceptance
criteria are met, will be accompanied by a document providing the
rationale supporting the 10 CFR 52.103(g) finding. As stated in NRR
Office Instruction LIC-114 Revision 1 (ADAMS Accession No.
ML20055E800), the staff intends to make the 10 CFR 52.103(g) finding
within 17 days of the licensee submitting the ``all ITAAC complete
notification'' if all prerequisites for this finding are met.
The ITAAC Status Report will be periodically updated to reflect the
submission of additional licensee ITAAC notifications and future NRC
inspection reports and review documents. In addition, to provide
additional background information to members of the public, https://www.nrc.gov/reactors/new-reactors/col-holder/vog4.html includes other
supporting documents, such as the final safety analysis report for the
facility, the NRC's final safety evaluation report for the COL review,
and the design control document for the AP1000 design certification,
which the facility references. Although the ITAAC Status Report and
https://www.nrc.gov/reactors/new-reactors/col-holder/vog4.html will be
periodically updated to reflect new information, there may be relevant
documents (including licensee ITAAC notifications) that have been
submitted or created after the most recent update and are publicly
available in ADAMS. To search for documents in ADAMS using the VEGP
Unit 4 docket number, 52-026, one should enter the term ``05200026'' in
the ``Docket Number'' field when using the web-based search (advanced
search) engine in ADAMS.
SNC provided numerous uncompleted ITAAC notifications earlier than
required; the staff was therefore able to review these notifications,
which contributed to the ITAAC closure process. The staff's review of
an uncompleted ITAAC notification focuses on the ITAAC completion
methodology described in the notification and is documented in an
Uncompleted ITAAC Notification
[[Page 5853]]
Checklist; these checklists are available in the ITAAC Status Report.
In accordance with 10 CFR 2.105(b)(3)(iv), the notice of intended
operation must identify any conditions, limitations, or restrictions to
be placed on the license in connection with the finding under 10 CFR
52.103(g), and the expiration date or circumstances (if any) under
which the conditions, limitations or restrictions will no longer apply.
As of the date of this notice, the NRC staff has not identified any
such conditions, limitations, or restrictions.
II. Hearing Requests
Any person whose interest may be affected by this proceeding and
who desires to participate as a party to this proceeding must file a
hearing request with the NRC. This section sets forth the requirements
for requesting a hearing on whether acceptance criteria in the COL for
VEGP Unit 4 have been or will be met. This section references the
requirements for hearing requests found in 10 CFR 2.309, ``Hearing
requests, petitions to intervene, requirements for standing, and
contentions,'' with certain additional procedures included in the
orders issued with this notice. Interested persons should consult 10
CFR 2.309, which is available at the NRC's Public Document Room and
electronically at https://www.nrc.gov/reading-rm/doc-collections/cfr/part002/part002-0309.html. All hearing requests must be filed in
accordance with the filing instructions in Section III of this notice.
A. A Hearing Request Must Show Standing
As required by 10 CFR 2.309(d), a hearing request shall show
standing by setting 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 hearing request must provide the
name, address, and telephone number of the petitioner and specifically
explain the reasons why intervention should be permitted with
particular reference to the following factors: (1) The nature of the
petitioner's right under the AEA to be made a party to the proceeding;
(2) the nature and extent of the petitioner's property, financial, or
other interest in the proceeding; and (3) the possible effect of any
decision or order that may be entered in the proceeding on the
petitioner's interest. Discretionary intervention pursuant to 10 CFR
2.309(e) does not apply to this proceeding because 10 CFR 2.309(a)
requires a showing of standing and contention admissibility in an ITAAC
hearing, and 10 CFR 2.309(a) does not provide a discretionary
intervention exception for hearings under 10 CFR 52.103 as it provides
for other proceedings.
B. A Hearing Request Must Include an Admissible Contention
A hearing request must also include the contentions that the
petitioner seeks to have litigated in the hearing. The contention
standards for an ITAAC hearing under 10 CFR 52.103(b), which are in
some respects different from the contention standards in other NRC
proceedings, are as follows.
For each contention, the petitioner must meet the following
requirements from 10 CFR 2.309(f)(1)(i) through (v) and (vii): \5\
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\5\ The requirements of 10 CFR 2.309(f)(1)(vi) do not apply to
this proceeding.
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Provide a specific statement of the issue of law or fact
to be raised or controverted, as required by 10 CFR 2.309(f)(1)(i). The
issue of law or fact to be raised must be directed at demonstrating
that one or more of the acceptance criteria in the COL have not been,
or will not be, met and that the specific operational consequences of
nonconformance would be contrary to providing reasonable assurance of
adequate protection of the public health and safety; \6\
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\6\ In accordance with 10 CFR 51.108, the Commission will not
admit any contentions on environmental issues in this proceeding,
and the NRC is not making any environmental finding in connection
with a finding under 10 CFR 52.103(g) that the acceptance criteria
are met.
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Provide a brief explanation of the basis for the
contention, as required by 10 CFR 2.309(f)(1)(ii);
Demonstrate that the issue raised by each contention is
within the scope of the proceeding and is material to the 10 CFR
52.103(g) finding, as required by 10 CFR 2.309(f)(1)(iii) and (iv);
Include a concise statement of the alleged facts or expert
opinions that support the petitioner's position 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,
as required by 10 CFR 2.309(f)(1)(v); and
Submit sufficient information showing, prima facie, that
one or more of the acceptance criteria in the COL have not been, or
will not be met, and that the specific operational consequences of
nonconformance would be contrary to providing reasonable assurance of
adequate protection of the public health and safety, as required by 10
CFR 2.309(f)(1)(vii). This information must include the specific
portion of the notification required by 10 CFR 52.99(c) that the
petitioner believes is inaccurate, incorrect, and/or incomplete (i.e.,
fails to contain the necessary information required by Sec.
52.99(c)).\7\
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\7\ Consistent with 10 CFR 2.309(f)(1)(vii), a purported
incompleteness in the 10 CFR 52.99(c) notification might be the
basis for a petitioner's prima facie showing. However, if the
petitioner believes that the purported incompleteness prevents the
petitioner from making the necessary prima facie showing, then the
petitioner may submit a claim of incompleteness as described later
in this section.
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As provided in the Additional Procedures Order issued with this
notice, any declarations of eyewitnesses or expert witnesses offered in
support of contention admissibility need to be signed by the eyewitness
or expert witness in accordance with 10 CFR 2.304(d). If declarations
are not signed, their content will be considered, but they will not be
accorded the weight of an eyewitness or an expert witness, as
applicable, with respect to satisfying the prima facie showing required
by 10 CFR 2.309(f)(1)(vii). The purpose of this provision is to ensure
that a position that is purportedly supported by an expert witness or
an eyewitness is actually supported by that witness.
Because the licensee references the AP1000 design certification
rule (10 CFR part 52, appendix D), the provisions in this design
certification rule pertaining to proceedings under 10 CFR 52.103 also
apply to hearing requests and contentions submitted in this proceeding.
These provisions include 10 CFR part 52, appendix D, sections VI,
VIII.B.5.g, and VIII.C.5.
C. Claims of Incompleteness
If the petitioner identifies a specific portion of the Sec.
52.99(c) notification as incomplete and contends that the incomplete
portion prevents the petitioner from making the necessary prima facie
showing, then 10 CFR 2.309(f)(1)(vii) requires the petitioner to
explain why this deficiency prevents the petitioner from making the
prima facie showing. Such a claim is called a ``claim of
incompleteness.'' The process for claims of incompleteness is intended
to address situations in which the licensee's 10 CFR 52.99(c)
notification is incomplete (i.e., fails to contain the necessary
information required by Sec. 52.99(c)) and this incompleteness
prevents the petitioner from making the necessary prima facie showing
with respect to one or more aspects of 10 CFR 2.309(1)(i) through (v)
and (vii).\8\ To
[[Page 5854]]
establish a valid claim of incompleteness, the petitioner (1) must
specifically identify the portion of the 10 CFR 52.99(c) notification
that the petitioner asserts is incomplete, (2) must provide an
adequately supported showing that the 10 CFR 52.99(c) notification
fails to include information required by 10 CFR 52.99(c), and (3) must
provide an adequately supported explanation of why this deficiency
prevents the petitioner from making the necessary prima facie
showing.\9\ This explanation must include a demonstration that the
allegedly missing information is reasonably calculated to support a
prima facie showing.
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\8\ 10 CFR 2.309(f)(1)(i) through (v) are essential elements in
making the prima facieshowing required by the AEA and NRC
regulations, and it is conceivable that an incompleteness in the
licensee's 10 CFR 52.99(c) notification would prevent the petitioner
from satisfying the elements in 10 CFR 2.309(f)(1)(i) through (v).
\9\ For claims of incompleteness, the ``incompleteness'' refers
to a lack of required information in a licensee's ITAAC
notification, not to whether the ITAAC has yet to be completed.
Thus, a valid claim of incompleteness with respect to an uncompleted
ITAAC notification must identify, among other things, an
insufficient description in the notification of how the licensee
will successfully complete the ITAAC.
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However, the petitioner's ability to file a claim of incompleteness
does not obviate the need for the petitioner to show standing and, to
the extent it can based on the available information, satisfy the
contention requirements. Thus, the petitioner must make all of its
claims regarding the ITAAC and satisfy the contention admissibility
requirements of 10 CFR 2.309(f)(1)(i) through (v) and (vii) in its
hearing request to the extent possible but for the petitioner's claim
of incompleteness. A claim of incompleteness does not toll a
petitioner's obligation to make a timely prima facie showing. If the
petitioner is unsure whether to file a contention or a claim of
incompleteness on an ITAAC notification, the petitioner can submit both
a contention and a claim of incompleteness at the same time, arguing in
the alternative that if the contention is not admissible, then the
claim of incompleteness is valid.
In addition, to the extent that a petitioner is able to make a
prima facie showing with respect to one aspect of an ITAAC, it must do
so even if there is a different aspect of the ITAAC for which a prima
facie showing cannot be made because of an incompleteness in the
licensee's 10 CFR 52.99(c) notification. Furthermore, because the prima
facie showing must address two issues--conformance with the acceptance
criteria and whether the operational consequences of nonconformance are
contrary to reasonable assurance of adequate protection of the public
health and safety--a valid claim of incompleteness must either explain
why the incompleteness in the 10 CFR 52.99(c) notification prevents the
petitioner from making the prima facie showing with respect to both
issues, or the petitioner must make the prima facie showing with
respect to one issue and explain why the incompleteness in the 10 CFR
52.99(c) notification prevents the petitioner from making the prima
facie showing with respect to the other issue.
To expedite the proceeding and prevent the unnecessary expenditure
of resources that might occur from litigating claims of incompleteness
that could have been resolved through negotiation, the Commission is
requiring consultation between the petitioner and the licensee
regarding information purportedly missing from the licensee's 10 CFR
52.99(c) ITAAC notifications. This consultation must occur in a timely
fashion prior to the filing of any claim of incompleteness.
Specifically, the petitioner must initiate consultation with the
licensee regarding any claims of incompleteness within 21 days of the
notice of intended operation for all ITAAC notifications that were
publicly available (or for which a redacted version was publicly
available) when the notice of intended operation was published. If the
ITAAC notification (or a redacted version thereof) becomes publicly
available after the notice of intended operation is published, then the
petitioner must initiate consultation with the licensee regarding any
claims of incompleteness on such notifications within 7 days of the
notification (or a redacted version thereof) becoming available to the
public, except that consultation need not be commenced earlier than 21
days after publication of the notice of intended operation. If
agreement is not reached before the deadline for filing the claim of
incompleteness, then the petitioner must file the claim of
incompleteness by the required deadline. Further requirements regarding
consultation on claims of incompleteness, including requirements
related to SUNSI or SGI and to deadlines for filing contentions once
access to information is granted, are in Section II.B.2 of the
Additional Procedures Order issued with this notice.
If the Commission determines that the petitioner has submitted a
valid claim of incompleteness, then it will issue an order requiring
the licensee to provide the additional information and setting forth a
schedule for the petitioner to file a contention that meets the prima
facie standard based on the additional information. If the petitioner
files an admissible contention thereafter, and all other hearing
request requirements (e.g., standing) have been met, then the hearing
request will be granted.
D. Access to SUNSI or SGI
A petitioner seeking access to SUNSI or SGI in the possession of
the NRC for the purposes of contention formulation shall make this
request in accordance with the SUNSI-SGI Access Order issued with this
notice. A petitioner who seeks access to SUNSI or SGI in the possession
of the licensee through the process for consultation on claims of
incompleteness shall do so in accordance with Section II.B.2 of the
Additional Procedures Order issued with this notice. Petitioners are
required to take advantage of these processes for seeking access to
SUNSI or SGI, and their failure to do so will be taken into account by
the NRC.
E. Participation by Interested States, Local Governments, and
Federally-Recognized Indian Tribes
A request for hearing submitted by a State, local government body,
Federally-recognized Indian Tribe, or an agency thereof must comply
with the provisions of 10 CFR 2.309(h)(1). The hearing request must
meet the requirements for hearing requests set forth in this section,
except that a State, local government body, Federally-recognized Indian
Tribe, or an agency thereof does not need to address the standing
requirements in 10 CFR 2.309(d) if the facility is located within its
boundaries or jurisdiction. A State, local government body, Federally-
recognized Indian Tribe, or an agency thereof may also seek to
participate in a hearing in accordance with 10 CFR 2.315(c).
F. Hearing Requests From the Licensee
The licensee may file a request for hearing if it disputes an NRC
staff determination that an ITAAC has not been successfully completed.
If the licensee requests a hearing, it must specifically identify the
ITAAC subject to this dispute and the specific issues that are being
disputed.\10\
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\10\ A hearing request from the licensee need not address the
standards in 10 CFR 2.309(d) or (f). In particular, the licensee's
interest in the proceeding is established by the fact that its
authority to operate the facility depends on its compliance with the
ITAAC. Also, the prima facie showing requirement does not apply to a
licensee hearing request because the licensee would be asserting
that an ITAAC has been successfully completed rather than asserting
that the acceptance criteria have not been, or will not be, met.
Licensees requesting a hearing would be challenging an NRC staff
determination that an ITAAC has not been successfully completed;
this NRC staff determination is analogous to a prima facie showing
that the acceptance criteria have not been met.
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[[Page 5855]]
G. Deadlines for Hearing Requests and Answers to Hearing Requests
Hearing requests must be filed no later than April 4, 2022. Hearing
requests, intervention petitions, and motions for leave to file new or
amended contentions or claims of incompleteness that are filed after
this date must meet the requirements for such filings that are set
forth in Section II.G of the Additional Procedures Order issued with
this notice. As provided by 10 CFR 2.309(i), answers to a petitioner's
hearing request must be filed within 25 days of service of the hearing
request, and the petitioner is not permitted to reply to these answers.
For hearing requests from the licensee, the NRC staff may file an
answer within 10 days of service of the hearing request, and the
licensee is not permitted to reply to the NRC staff's answer.
The Commission will expeditiously rule on all hearing requests, and
the milestone for this ruling is 30 days from the filing of answers. If
the petitioner's hearing request is granted, the petitioner becomes a
party to the contested proceeding, subject to any limitations in the
order granting the hearing request. Concurrent with the granting of the
hearing request, the Commission would designate the presiding officer
for the hearing and issue an order specifying the hearing procedures
that would apply to the proceeding. The party's participation would be
governed by the applicable procedures set forth in the Commission order
and may include the opportunity to present the party's legal and
technical views, introduce evidence, and propose questions to be asked
of witnesses. The hearing procedures will be selected from those
described in the ``Final Procedures for Conducting Hearings on
Conformance with the Acceptance Criteria in Combined Licenses'' (Final
ITAAC Hearing Procedures) (81 FR 43266; July 1, 2016), and may include
any additional or modified case-specific procedures that the Commission
designates.\11\
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\11\ In accordance with 10 CFR 2.309(g), participants to this
proceeding may not address the selection of hearing procedures in
their initial filings. The NRC provided the public with an
opportunity to comment on generic hearing procedures during the
comment period on the proposed generic procedures. See Final ITAAC
Hearing Procedures, 81 FR 43266; Proposed Procedures for Conducting
Hearings on Whether Acceptance Criteria in Combined Licenses Are
Met, 79 FR 21958 (Apr. 18, 2014) (Proposed ITAAC Hearing
Procedures). This prohibition, however, does not apply to a
licensee's hearing request because such hearing requests are not
subject to 10 CFR 2.309 and because the generic procedures did not
address the procedures for hearings requested by the licensee.
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H. Interim Operation
If a hearing request is granted, AEA Sec. 189a.(1)(B)(iii) directs
the Commission to determine whether to allow interim operation, which
is operation of the facility for an interim period before completion of
the adjudicatory hearing. Interim operation will be allowed if the NRC
staff makes the 10 CFR 52.103(g) finding for all ITAAC and if the
Commission determines, after considering the petitioner's prima facie
showing and any answers thereto, that there will be reasonable
assurance of adequate protection of the public health and safety during
a period of interim operation. AEA Sec. Sec. 185b. and
189a.(1)(B)(iii); 10 CFR 52.103(c). As provided by 10 CFR 52.103(c),
the Commission will make this adequate protection determination acting
as the presiding officer.
The Commission is reserving its flexibility to make the interim
operation determination at a time of its discretion. Because the
purpose of the interim operation provision is to prevent an ITAAC
hearing from unnecessarily delaying plant operation if the hearing
extends beyond scheduled fuel load, the Commission intends to make an
adequate protection determination for interim operation by scheduled
fuel load if the hearing is not completed by that time.
In making the adequate protection determination for interim
operation, the Commission will follow the legislative intent underlying
the interim operation provision. The pertinent legislative history
indicates that Congress did not intend that the Commission would rule
on the merits of the petitioner's prima facie showing when making the
adequate protection determination for interim operation. Instead,
Congress intended interim operation for situations in which the
petitioner's prima facie showing relates to an asserted adequate
protection issue that does not present adequate protection concerns
during the interim operation period or for which mitigation measures
can be taken to preclude potential adequate protection issues during
the period of interim operation.\12\
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\12\ Additional background information regarding interim
operation can be found in the Federal Register notice for the Final
ITAAC Hearing Procedures (81 FR 43266).
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As stated previously, the adequate protection determination for
interim operation is based on the parties' initial filings, i.e., the
hearing request and answers thereto. Thus, the petitioner should
include in its hearing request information regarding the time period
and modes of operation during which the adequate protection concern
arises. Likewise, the NRC staff and the licensee should include such
information in their answers to the hearing request, and the licensee
should also include any proposed mitigation measures to address the
adequate protection concerns raised by the petitioner. The petitioners,
the NRC staff, and the licensee are reminded that, ordinarily, their
initial filings will be their only opportunity to address adequate
protection during interim operation.
Because the Commission's interim operation determination is a
technical finding, a proponent's views regarding adequate protection
during interim operation must be supported with alleged facts or expert
opinion, including references to the specific sources and documents on
which the proponent relies. Any expert witness or eyewitness
declarations, including a statement of the qualifications and
experience of the expert, must be signed in accordance with 10 CFR
2.304(d). The probative value that the NRC accords to a proponent's
position on adequate protection during interim operation will depend on
the level and specificity of support provided by the proponent,
including the qualifications and experience of each expert providing
expert opinion.
If the Commission grants a hearing request, it may order additional
briefing as a matter of discretion to support a determination on
whether there will be adequate protection during interim operation.
Such a briefing order will be issued concurrently with the granting of
the hearing request. In addition, if mitigation measures are proposed
by the licensee in its answer to the hearing request, then the
Commission will issue a briefing order allowing the NRC staff and the
petitioners an opportunity to address adequate protection during
interim operation in light of the mitigation measures proposed by the
licensee in its answer.
More information on the interim operation process can be found in
the Final ITAAC Hearing Procedures (81 FR 43266).
I. Limited Appearance Statements
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 10 CFR 2.315(a). In the discretion of the
presiding officer, a person making a limited appearance may make an
oral or written statement of position on the issues at any session of
the hearing or any prehearing conference within the
[[Page 5856]]
limits and on the conditions fixed by the presiding officer. However,
the presiding officer will not provide for oral limited appearance
statements unless an oral hearing is held. In addition, a person making
a limited appearance statement may not otherwise participate in the
proceeding. Such limited appearance statements shall not be considered
evidence in the proceeding.
III. Electronic Submissions (E-Filing)
Except for an initial request for access to SUNSI or SGI made
pursuant to the SUNSI-SGI Access Order, all documents filed in this
proceeding, including a request for hearing, any motion or other
document filed in the proceeding prior to the submission of a request
for hearing, and documents filed by interested governmental entities
participating under 10 CFR 2.315(c), must be filed in accordance with
the NRC's E-Filing rule (72 FR 49139; August 28, 2007, as amended at 77
FR 46562; August 3, 2012) as modified by the procedures in the orders
issued with this notice.\13\ Participants to this proceeding must
submit and serve all adjudicatory documents over the internet, or in
some cases mail copies on electronic storage media by overnight mail.
The user's guide for electronic adjudicatory submissions is available
at https://www.nrc.gov/site-help/e-submittals/adjudicatory-eie-submission-user-guide.pdf. Participants may not submit paper copies of
their filings unless they seek an exemption in accordance with the
procedures described later in this section.
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\13\ The initial request for access to SUNSI or SGI must be made
in accordance with the procedures set forth in the SUNSI-SGI Access
Order that accompanies this notice.
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To comply with the procedural requirements of E-Filing, at least 10
days prior to the filing deadline, the participant should (1) obtain a
digital identification (ID) certificate, which allows the participant
(or its counsel or representative) to digitally sign documents and
access the E-Submittal server for this proceeding and (2) contact the
Office of the Secretary by email at [email protected], or by
telephone at 301-415-1677, to advise the Secretary that the participant
will be submitting a request for hearing (even in instances in which
the participant, or its counsel or representative, already holds an
NRC-issued digital ID certificate). Based upon this information, the
Secretary will establish an electronic docket for this proceeding if
the Secretary has not already established an electronic docket.
Information about applying for a digital ID certificate is
available on the NRC's public website at https://www.nrc.gov/site-help/e-submittals/getting-started.html. Once a participant has obtained a
digital ID certificate and a docket has been created, the participant
can then submit adjudicatory documents. Submissions should be in
Portable Document Format (PDF). Additional guidance on PDF submissions
is available on the NRC's public website at https://www.nrc.gov/site-help/e-submittals.html.
A filing is considered complete at the time the documents are
submitted through the NRC's E-Filing system. To be timely, an
electronic filing must be submitted to the E-Filing system no later
than 11:59 p.m. Eastern Time on the due date. Upon receipt of a
transmission, the E-Filing system time-stamps the document and sends
the submitter an email notice confirming receipt of the document. The
E-Filing system also distributes an email notice that provides access
to the document to the NRC's 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, the licensee and
other participants (or their counsel or representative) must apply for
and receive a digital ID certificate before a hearing request is filed
so that they can obtain access to the document via the E-Filing system.
A person filing electronically using the NRC's adjudicatory E-
Filing system may seek assistance by contacting the NRC's Electronic
Filing Help Desk through the ``Contact Us'' link located on the NRC's
public website at https://www.nrc.gov/site-help/e-submittals.html, by
email to [email protected], or by a toll-free call at 1-866-672-
7640. The NRC Electronic Filing Help Desk is available between 9:00
a.m. and 6:00 p.m., Eastern Time, Monday through Friday, excluding
government holidays.
Participants who believe that they have a good cause for not
submitting documents electronically must file an exemption request, in
accordance with 10 CFR 2.302(g), with their initial paper filing
requesting authorization to continue to submit documents in paper
format. Such filings must be submitted by overnight mail to the Office
of the Secretary, U.S. Nuclear Regulatory Commission, Attention:
Rulemaking and Adjudications Staff, Mail Stop OWFN 16-B33, One White
Flint North, 11555 Rockville Pike, Rockville, Maryland 20852.
Participants filing a document in this manner are responsible for
serving the document on all other participants. Filing is considered
complete by overnight mail upon depositing the document with the
provider of the service. A presiding officer, having granted an
exemption request from using E-Filing, may require a participant or
party to use E-Filing if the presiding officer subsequently determines
that the reason for granting the exemption from use of E-Filing no
longer exists.
Any person who files a motion pursuant to 10 CFR 2.323 (as modified
by the Additional Procedures Order issued with this notice) must
consult with counsel for the licensee and counsel for the NRC staff.
Counsel for the licensee is M. Stanford Blanton, Balch & Bingham LLP,
205-226-3417, [email protected]. Counsel for the NRC staff in this
proceeding is Michael Spencer, 301-287-9115, [email protected].
Documents submitted in this proceeding will appear in the NRC's
electronic hearing docket, which is available to the public at https://adams.nrc.gov/ehd, unless excluded pursuant to an order of the
Commission or the presiding officer. If you do not have an NRC-issued
digital ID certificate as described above, click ``cancel'' when the
link requests certificates and you will be automatically directed to
the NRC's electronic hearing dockets where you will be able to access
any publicly available documents in a particular hearing docket.
Participants are requested not to include personal privacy information,
such as social security numbers, home addresses, or home phone numbers
in their filings, unless an NRC regulation or other law requires
submission of such information. However, a hearing request will require
that the petitioner include information on local residence in order to
demonstrate a proximity assertion of interest in this proceeding. With
respect to copyrighted works, except for limited excerpts that support
the adjudicatory filings and would constitute a Fair Use application,
participants are requested not to include copyrighted materials in
their submission.
For the Nuclear Regulatory Commission.
[[Page 5857]]
Dated: January 27, 2022.
Annette L. Vietti-Cook,
Secretary of the Commission.
Attachment 1: Orders Associated With the Notice of Intended Operation
Order Imposing Additional Procedures for ITAAC Hearings Before a
Commission Ruling on the Hearing Request
I. Background
The Atomic Energy Act of 1954, as amended (AEA), grants the NRC
discretion to establish appropriate procedures for conducting a hearing
on whether a facility as constructed complies, or upon completion will
comply, with the acceptance criteria in the combined license, provided
that the NRC explains its reasoning for establishing those procedures.
AEA Sec. 189a.(1)(B)(iv). As provided by 10 CFR 2.310(j), the
Commission designates on a case-specific basis the procedures for
proceedings on a Commission finding under 10 CFR 52.103(c) and (g),
which includes the Commission determination on a hearing request under
10 CFR 52.103(c).\14\ This order contains the procedures that govern
requests for hearings on conformance with the prescribed acceptance
criteria in the combined license, as well as other filings that may be
submitted before a Commission ruling on the hearing request.\15\ The
procedures in this order were approved by the Commission for use on a
general basis in the ``Final Procedures for Conducting Hearings on
Conformance with the Acceptance Criteria in Combined Licenses'' (Final
ITAAC [inspections, tests, analyses, and acceptance criteria] Hearing
Procedures) (81 FR 43266; July 1, 2016).
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\14\ See Licenses, Certifications, and Approvals for Nuclear
Power Plants, 72 FR 49352, 49414 (August 28, 2007) (final rule).
\15\ This order contains only procedures governing the period
prior to a ruling on the hearing request. If the Commission grants a
hearing request or determines that a claim of incompleteness is
valid, then the Commission will issue procedures governing the
resolution of these issues concurrently with its decision on the
hearing request.
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The Commission developed the procedures in this order based on the
NRC's rules of practice in 10 CFR part 2, primarily subpart C, adopting
or modifying them as necessary to conform to the expedited schedule and
specialized nature of hearings on ITAAC. The Commission modeled these
procedures on the existing rules because they have proven effective in
promoting a fair and efficient process in adjudications and there is a
body of experience and precedent interpreting and applying these
provisions. In addition, using the existing rules to the extent
possible could make it easier for potential participants in the hearing
to apply the procedures in this order if they are already familiar with
the existing rules. To the extent that the Commission has substantively
modified these rules, the basis for the Commission's decision is set
forth in this order.\16\ And to the extent that the Commission has
adopted the rules with little or no substantive change, the Commission
incorporates by reference the basis for their promulgation in 10 CFR
part 2.
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\16\ The procedures and schedule imposed by this order are based
on a set of general procedures that the Commission approved after
the consideration of public comments. See Final ITAAC Hearing
Procedures, 81 FR 43266; Proposed Procedures for Conducting Hearings
on Whether Acceptance Criteria in Combined Licenses Are Met, 79 FR
21958 (Apr. 18, 2014). The notice in the Federal Register
accompanying those general procedures provides a further explanation
of their bases.
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Many of the modifications the Commission has made to the hearing
procedures in existing regulations are to account for the requirement
in the AEA that, to the maximum possible extent, decisions resolving
issues raised by an ITAAC hearing request shall be rendered within 180
days of the publication of the notice of intended operation or the
anticipated date for initial loading of fuel, whichever is later. AEA
Sec. 189a.(1)(B)(v). Therefore, the Commission has established a
narrow time frame for hearings on ITAAC, which is reflected in reduced
time limits for certain adjudicatory actions. The Commission has also
made appropriate changes to the ``Order Imposing Procedures for Access
to Sensitive Unclassified Non-Safeguards Information [SUNSI] and
Safeguards Information [SGI] for Contention Preparation'' (SUNSI-SGI
Access Order), which immediately follows this order. The participants
are obligated to ensure that their representatives and witnesses are
available during the hearing process to perform all of their hearing-
related tasks on time. The competing obligations of the participants'
representatives or witnesses will not be considered good cause for any
delays in the schedule.
II. Hearing Procedures
The procedures set forth herein and in the SUNSI-SGI Access Order
issued with this notice are exclusive--in other words, no procedures
other than those stated in the orders issued with the notice of
intended operation apply to this proceeding, unless modified by a later
Commission order. Thus, if a provision of 10 CFR part 2 is not
expressly referenced in this order, then it does not apply to this
proceeding, unless modified by a later Commission order.
A. Briefing of Legal Issues in Filings
In order to expedite the proceeding and ensure sound decision
making by the presiding officer, participants must fully brief all
relevant legal issues in their filings.
B. Hearing Requests and Answers to Hearing Requests
1. Requirements for Hearing Requests
a. Hearing requests must be filed within 60 days of the publication
of the notice of intended operation. Section II.G of this order governs
hearing requests, intervention petitions, and motions for leave to file
new or amended contentions or claims of incompleteness that are filed
after 60 days from the publication of the notice of intended operation.
b. Hearing requests from petitioners must meet the requirements of
10 CFR 2.309(f)(1)(i) through (v) and 10 CFR 2.309(f)(1)(vii). The
requirements of 10 CFR 2.309(f)(1)(vi) do not apply to this proceeding.
c. The requirements of Sections VI, VIII.B.5.g and VIII.C.5 of the
AP1000 design certification rule apply to this proceeding.
d. A hearing request from a petitioner must include a demonstration
that the petitioner has standing in accordance with the requirements of
10 CFR 2.309(d). Additionally, the provisions of 10 CFR 2.309(h) apply
to this proceeding. However, discretionary intervention pursuant to 10
CFR 2.309(e) does not apply to this proceeding because 10 CFR 2.309(a)
requires a showing of standing and contention admissibility in an ITAAC
hearing, and 10 CFR 2.309(a) does not provide a discretionary
intervention exception for hearings under 10 CFR 52.103 as it provides
for other proceedings.
e. Any declarations of eyewitnesses or expert witnesses offered in
support of contention admissibility need to be signed by the eyewitness
or expert witness in accordance with 10 CFR 2.304(d). If declarations
are not signed, their content will be considered, but they will not be
accorded the weight of an eyewitness or an expert witness, as
applicable, with respect to satisfying the prima facie showing required
by 10 CFR 2.309(f)(1)(vii). The purpose of this provision is to ensure
that a position that is purportedly supported by an expert witness or
an eyewitness is actually supported by that witness.
f. Hearing requests from the licensee must specifically identify
the ITAAC
[[Page 5858]]
whose successful completion is being disputed by the NRC staff and
identify the specific issues that are being disputed.
2. Consultation on Claims of Incompleteness: To expedite the
proceeding and prevent the unnecessary expenditure of resources that
might occur from litigating claims of incompleteness that could have
been resolved through negotiation, the Commission is requiring
consultation between the petitioner and the licensee regarding
information purportedly missing from the licensee's 10 CFR 52.99(c)
ITAAC notifications. This consultation must occur prior to the filing
of any claim of incompleteness and must be in accordance with the
provisions set forth below.
a. The petitioner must make a sincere effort to timely initiate and
meaningfully engage in consultation with the licensee, and the licensee
must make a sincere effort to listen to and respond to the petitioner.
Both the petitioner and the licensee must make sincere efforts to
resolve the petitioner's request and must complete consultations (and
any delivery of documents) with due dispatch.
b. The petitioner must initiate consultation with the licensee
regarding any claims of incompleteness within 21 days of the notice of
intended operation for all ITAAC notifications that were publicly
available (or for which a redacted version was publicly available) when
the notice of intended operation was published. If the ITAAC
notification (or a redacted version thereof) becomes publicly available
after the notice of intended operation is published, then the
petitioner must initiate consultation with the licensee regarding any
claims of incompleteness on such notifications within 7 days of the
notification (or a redacted version thereof) becoming available to the
public, except that consultation need not be commenced earlier than 21
days after publication of the notice of intended operation.
c. Within one day of the licensee discovering that consultation on
a claim of incompleteness involves SUNSI or SGI, the licensee must
inform the petitioner of this fact. Within one day of the licensee
discovering that security-related SUNSI or SGI is involved, the
licensee must also inform the NRC staff with a brief explanation of the
situation.
d. If consultation on a claim of incompleteness involves security-
related SUNSI or SGI, then the licensee shall not provide the security-
related SUNSI or SGI unless and until the NRC has determined that such
access is appropriate. Also, if SGI is involved and the petitioner
continues to seek access to it, then, in order to expedite the
proceeding, the petitioner must complete and submit to the NRC the
background check forms and fee in accordance with Sections D.(2)(a)
though D.(2)(e) of the SUNSI-SGI Access Order issued with this notice.
The background check forms and fee must be submitted within 5 days of
notice from the licensee that SGI is involved. Petitioners are expected
to have forms completed prior to this date to allow for expeditious
submission of the required forms and fee. The petitioner should review
all submitted materials for completeness and accuracy (including
legibility) before submitting them to the NRC.
e. In determining whether access to SUNSI or SGI is appropriate as
part of the consultation process, the NRC staff shall employ the
standards in Section F of the SUNSI-SGI Access Order with respect to
likelihood of establishing standing, need for SUNSI, and need to know
for SGI. For access to SGI, the NRC Office of Administration will also
determine, based upon completion of the background check, whether the
proposed recipient is trustworthy and reliable, as required by 10 CFR
73.22(b) for access to SGI. Before making a final adverse
trustworthiness and reliability determination, the NRC Office of
Administration will employ the process set forth in Section K.(2) of
the SUNSI-SGI Access Order. If the NRC Office of Administration makes a
final adverse determination on trustworthiness and reliability, any
request for review of this determination must be filed with the Chief
Administrative Judge within 7 days of receipt of the adverse
determination, any NRC staff response must be filed within 7 days of
receipt of the request for review, and such requests for review shall
be resolved in accordance with Section K.(4) of the SUNSI-SGI Access
Order.\17\
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\17\ If consultations are not successful because the NRC staff
makes an adverse determination on the petitioner's likelihood of
establishing standing, need for SUNSI, or need to know for SGI, then
the issues of standing, need for SUNSI, and need to know for SGI (as
applicable) will be resolved in a ruling on the claim of
incompleteness if the petitioner decides to file a claim of
incompleteness.
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f. If access to SUNSI or SGI is granted, the presiding officer for
any non-disclosure agreement or affidavit or protective order will be
designated in accordance with Sections G and H of the SUNSI-SGI Access
Order. The approved protective order templates announced in
``Protective Order Templates for Hearings on Conformance With the
Acceptance Criteria in Combined Licenses'' (84 FR 3515; Feb. 12, 2019),
should serve as a basis for case-specific protective orders, as
appropriate. Release and storage of SGI shall be in accordance with
Section I of the SUNSI-SGI Access Order.
g. Any contention based on additional information provided to the
petitioner by the licensee through consultation on claims of
incompleteness shall be due within 20 days of the petitioner's access
to the additional information, unless more than 20 days remains between
the petitioner's access to the additional information and the deadline
for the hearing request, in which case the contention shall be due by
the later hearing request deadline.
h. If agreement is not reached before the deadline for filing the
claim of incompleteness, then the petitioner must file the claim of
incompleteness by the required deadline.
i. If a claim of incompleteness is filed, the petitioner must
include with its claim of incompleteness a certification by the
attorney or representative of the petitioner that the petitioner (1)
complied with the timeliness requirements for consultation and (2) made
a sincere effort to meaningfully engage in consultation with the
licensee on access to the purportedly missing information prior to
filing the claim of incompleteness. This certification may include any
additional discussion that the petitioner believes is necessary to
explain the situation.
j. A claim of incompleteness involving SUNSI or SGI must (1)
specifically identify the extent to which the petitioner believes that
any requested information might be SUNSI or SGI, and (2) include a
showing of the need for the information (for access to SUNSI) or need
to know (for access to SGI). The showing of need for SUNSI must satisfy
the standard in Section D.(1)(iii) of the SUNSI-SGI Access Order, and
the showing of need to know for SGI must satisfy the standard in
Section D.(1)(iv) of the SUNSI-SGI Access Order. A claim of
incompleteness involving SGI must also state that the required forms
and fee for the background check have been submitted to the NRC in
accordance with Sections D.(2)(a) through D.(2)(e) of the SUNSI-SGI
Access Order.
k. A licensee answer to a claim of incompleteness must include a
certification by the licensee's attorney or representative that the
licensee (1) complied with the timeliness requirements for consultation
and (2) made a sincere effort to listen to and respond to the
petitioner and to resolve the petitioner's request prior to the filing
of the claim of incompleteness. This certification may include any
[[Page 5859]]
additional discussion that the licensee believes is necessary to
explain the situation. An answer from the licensee must also
specifically identify the extent to which the licensee believes that
any requested information might be SUNSI or SGI.
l. In determining whether a claim of incompleteness is valid, the
Commission will consider all of the information available to the
petitioner, including any information provided by the licensee. The
Commission will also consider whether the participants have discharged
their consultation obligations in good faith.
3. Effect of Hearing Requests on Interim Operation
a. If the petitioner argues that the information raised in the
hearing request will affect adequate protection during interim
operation, then, in order for its views to be considered before the
Commission makes the interim operation determination, the petitioner
shall provide its views on this issue, including the time periods and
modes of operation in which the adequate protection concern arises, at
the same time it submits the hearing request.\18\
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\18\ A claim of incompleteness does not bear on interim
operation because interim operation is intended to address whether
operation shall be allowed notwithstanding the petitioner's prima
facie showing, while a claim of incompleteness is premised on the
petitioner's inability to make a prima facie showing.
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b. Because the Commission's interim operation determination is a
technical finding, a petitioner's views regarding adequate protection
during interim operation must be supported with alleged facts or expert
opinion, including references to the specific sources and documents on
which it relies. Any expert witness or eyewitness declarations,
including a statement of the qualifications and experience of the
expert, must be signed in accordance with 10 CFR 2.304(d). The
probative value that the NRC accords to a petitioner's position on
adequate protection during interim operation will depend on the level
and specificity of support provided by the petitioner, including the
qualifications and experience of each expert providing expert opinion.
4. Answers
a. Answers to a petitioner's hearing request shall be filed within
25 days of service of the hearing request in accordance with 10 CFR
2.309(i)(1). An answer to a licensee's hearing request may be filed by
the NRC staff within 10 days of service of the hearing request.
b. Any answers to the proffered contention from the NRC staff and
the licensee shall include their views regarding the impact of the
issues raised in the hearing request on adequate protection during
interim operation, including the licensee's plans, if any, to propose
mitigation measures to ensure adequate protection during interim
operation. NRC staff filings addressing interim operation should
address any terms and conditions that should be imposed to assure
adequate protection during the interim period. Because the Commission's
interim operation determination is a technical finding, the NRC staff's
and the licensee's views regarding adequate protection during interim
operation must be supported with alleged facts or expert opinion,
including references to the specific sources and documents on which
they rely. Any expert witness or eyewitness declarations, including a
statement of the qualifications and experience of the expert, must be
signed in accordance with 10 CFR 2.304(d). The probative value that the
NRC accords to the NRC staff's or the licensee's position on adequate
protection during interim operation will depend on the level and
specificity of support provided, including the qualifications and
experience of each expert providing expert opinion.
c. As provided by 10 CFR 2.309(i)(2)-(3), replies to answers are
not permitted. If the Commission grants the hearing request, it may
determine that additional briefing is necessary to support an adequate
protection determination on interim operation. If the Commission makes
determinations that additional briefing is necessary on the adequate
protection determination, then it intends to issue a briefing order
concurrently with the granting of the hearing request. In addition, if
mitigation measures are proposed by the licensee in its answer to the
hearing request, then the Commission intends to issue a briefing order
allowing the NRC staff and the petitioner an opportunity to address
adequate protection during interim operation in light of the mitigation
measures proposed by the licensee in its answer.
5. Timing for Decision on Hearing Requests
a. Unless the Commission extends its time for review, the
Commission will rule on a hearing request within 30 days of the filing
of answers.
b. A Commission interim operation determination need not be made in
conjunction with a ruling on the hearing request.
C. General Motions
To accommodate the expedited timeline for the hearing, the time
period for filing and responding to motions must be shortened from the
time periods set forth in 10 CFR part 2, subpart C. Therefore, all
motions, except for motions for leave to file new or amended
contentions or claims of incompleteness filed after the deadline, shall
be filed within 7 days after the occurrence or circumstance from which
the motion arises, or earlier, as prescribed by the presiding officer.
Answers to motions shall be filed within 7 days after service of the
motion, or earlier, as prescribed by the presiding officer. Except for
the filing deadlines, motions and answers shall otherwise conform to
the requirements of 10 CFR 2.323(a) through (d). The provisions of 10
CFR 2.323(g) apply to this proceeding.
D. Motions for Extension of Time
1. Except as otherwise provided, the presiding officer may, for
good cause shown, extend the time fixed or the period of time
prescribed for an act that is required or allowed to be done at or
within a specified time. A showing of good cause must be based on an
event occurring before the deadline in question.
2. When determining whether the requesting participant has
demonstrated good cause, the presiding officer shall take into account
the factors in 10 CFR 2.334(b):
a. Whether the requesting participant has exercised due diligence
to adhere to the schedule;
b. Whether the requested change is the result of unavoidable
circumstances; and
c. Whether the other participants have agreed to the change and the
overall effect of the change on the schedule of the case.
3. In furtherance of the statutory direction regarding the
expeditious completion of the hearing, ``good cause'' is to be
interpreted strictly, and a showing of ``unavoidable and extreme
circumstances'' \19\ is required for any extension, no matter how
minor. Because good cause will be interpreted strictly, meritorious
motions will likely be based on events outside the participant's
control.
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\19\ This standard is taken from the Policy on Conduct of
Adjudicatory Proceedings, CLI-98-12, 48 NRC 18, 21 (1998).
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4. Motions for extension of time shall be filed as soon as possible
but no later than 3 days before the deadline, with one limited
exception. If the participant is unable to file an extension request by
3 days before the deadline, then the participant must (1) file its
request as soon as possible thereafter, (2) demonstrate that
unavoidable and
[[Page 5860]]
extreme circumstances prevented the participant from filing its
extension request by 3 days before the deadline, and (3) demonstrate
that the participant filed its extension request as soon as possible
thereafter.\20\
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\20\ Consistent with practice under 10 CFR 2.307, a motion for
extension of time might be filed shortly after a deadline has
passed, e.g., an unanticipated event on the filing deadline
prevented the participant from filing. See Amendments to
Adjudicatory Process Rules and Related Requirements, 77 FR 46562,
46571 (August 3, 2012) (final rule).
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E. Requests for Reconsideration and Motions for Clarification
Motions for reconsideration are not allowed for decisions on the
hearing request or any presiding officer decisions prior to the
decision on the hearing request. Instead, reconsideration will only be
allowed for a presiding officer's initial decision after hearing and
Commission decisions on appeal of a presiding officer's initial
decision. Reconsideration is allowed in these narrow instances because
these are the most important decisions in the proceeding and motions
for reconsideration of these decisions do not prevent them from taking
effect. Reconsideration is not permitted for other decisions because
(1) reconsideration is unlikely to be necessary for other decisions,
which are interlocutory in nature, (2) the resources necessary to
prepare, review, and rule on requests for reconsideration would take
time away from other hearing-related tasks, (3) participants who
disagree with an order of the presiding officer may seek redress
through the process for appeals and petitions for review, and (4) the
appellate process will not cause undue delay given the expedited nature
of the proceeding. Motions for clarification are allowed for these
other decisions, but to prevent them from becoming de facto motions for
reconsideration, motions for clarification will be limited to
ambiguities in a presiding officer order. In addition, a motion for
clarification must explain the basis for the perceived ambiguity and
may offer possible interpretations of the purportedly ambiguous
language.
F. Presiding Officer Notifications
1. Notification of Relevant New Developments in the Proceeding
a. Given the potential for circumstances to change over the course
of this unique proceeding, we remind the participants of their
continuing obligation to notify the other participants, the presiding
officer, and the Commission of relevant new developments in the
proceeding.\21\
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\21\ USEC Inc. (American Centrifuge Plant), CLI-06-10, 63 NRC
451, 470 (2006).
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2. Additional Notification Procedures for Pending Contentions
a. For several reasons, it is possible for the factual predicate of
a proposed contention to change before a decision on its admissibility.
First, NRC regulations require for uncompleted ITAAC that hearing
requests be submitted on the predictive question of whether one or more
of the acceptance criteria in the combined license will not be met.\22\
When the ITAAC is later completed, this may affect the basis for the
proposed contention. Second, a licensee might choose to re-perform an
inspection, test, or analysis for ITAAC maintenance or to dispute a
proposed contention.\23\ Third, events subsequent to the performance of
an ITAAC might be relevant to the continued validity of the earlier
ITAAC performance. To account for these possibilities, and to ensure
that the presiding officer and the participants are timely notified of
a change in circumstances, the NRC establishes the following additional
procedures for proposed contentions that might be affected by such an
event.
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\22\ See 10 CFR 2.309(f)(1)(vii).
\23\ The AEA provisions on combined licenses and ITAAC were
added by the Energy Policy Act of 1992 (EPAct), Public Law Number
102-486. The legislative history of the EPAct suggests that re-
performing the ITAAC would be a simpler way to resolve disputes
involving competing eyewitness testimony. 138 Cong. Rec. S1143-44
(Feb. 6, 1992) (statement of Sen. Johnston). In addition, ITAAC re-
performance might occur as part of the licensee's maintenance of the
ITAAC, and might also result in an ITAAC post-closure notification.
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b. To ensure that the presiding officer and the other participants
stay fully informed of the status of challenged ITAAC as a proposed
contention is being considered, any answers to the proposed contention
from the NRC staff and the licensee must discuss any changes in the
status of challenged ITAAC.
c. After answers are filed, the participants must notify the
presiding officer and the other participants in a timely fashion as to
any changes in the status of a challenged ITAAC up to the time that the
presiding officer rules on the admissibility of the contention. This
would include notifying the presiding officer and the other
participants of information related to re-performance of an ITAAC that
might bear on the proposed contention. In addition, after answers are
filed, the licensee must notify the presiding officer and the other
participants of the submission of any ITAAC closure notification or
ITAAC post-closure notification for a challenged ITAAC. This notice
must be filed within one day of the submission of the ITAAC closure
notification or ITAAC post-closure notification to the NRC.
G. Hearing Requests, Intervention Petitions, and Motions for Leave To
File New or Amended Contentions or Claims of Incompleteness Filed After
the Original Deadline
1. Presiding Officer: Hearing requests, intervention petitions, and
motions for leave to file new or amended contentions or claims of
incompleteness after the original deadline must be filed with the
Commission.
a. The Commission will rule upon all hearing requests, intervention
petitions, and motions for leave to file new contentions or claims of
incompleteness that are filed after the original deadline. If the
Commission grants the hearing request, intervention petition, or motion
for leave to file new contentions, the Commission will designate the
hearing procedures and schedule for the newly admitted contentions and
will determine whether there will be adequate protection during interim
operation with respect to the newly admitted contentions. If the
Commission determines that a new or amended claim of incompleteness
demonstrates a need for additional information in accordance with 10
CFR 2.309(f)(1)(vii), the Commission will designate separate procedures
for resolving the claim.
b. For motions for leave to file amended contentions, the
Commission may rule on the amended contentions or may delegate rulings
on such contentions to a licensing board or a single legal judge
(assisted as appropriate by technical advisors). For amended
contentions, a Commission ruling may not be necessary to lend
predictability to the hearing process because the Commission will have
provided guidance on the admissibility of the relevant issues when it
ruled on the original contention. If a hearing request is granted,
additional procedures governing presiding officer rulings on amended
contentions will be included in a Commission order issued concurrently
with its decision on the hearing request.
2. Good Cause Required, as Defined in 10 CFR 2.309(c)
a. Hearing requests, intervention petitions, and motions for leave
to file new or amended contentions or claims of incompleteness that are
filed by petitioners after the original deadline will not be
entertained absent a determination by the Commission or the presiding
officer that the petitioner has
[[Page 5861]]
demonstrated good cause by showing that:
(i) The information upon which the filing is based was not
previously available;
(ii) The information upon which the filing is based is materially
different from information previously available; and
(iii) The filing has been submitted in a timely fashion based on
the availability of the subsequent information. To be deemed timely,
hearing requests, intervention petitions, and motions for leave to file
new or amended contentions filed after the original deadline must be
filed within 20 days of the availability of the information upon which
the filing is based. To be deemed timely, motions for leave to file new
or amended claims of incompleteness under 10 CFR 2.309(f)(1)(vii) must
be filed within 20 days of the date that the challenged 10 CFR 52.99(c)
notification (or a redacted version thereof) becomes available to the
public.
3. Additional Requirements
a. Hearing requests, intervention petitions, and motions for leave
to file new or amended contentions or claims of incompleteness that are
filed by petitioners after the original deadline must meet the
requirements set forth in Sections II.B.1.b through II.B.1.e of this
order, except that a showing of standing is not required for
participants who have already addressed the standing criteria.
b. Claims of incompleteness filed after the original deadline are
subject to the requirements of Section II.B.2 of this order except that
Section II.B.2.b is clarified to provide that the petitioner must
initiate consultation with the licensee regarding any claims of
incompleteness on such notifications within 7 days of the notification
(or a redacted version thereof) becoming available to the public.
c. Licensee hearing requests after the original deadline must be
filed within 20 days of formal correspondence from the NRC staff
communicating its position that a particular ITAAC has not been
successfully completed. Licensee hearing requests after the original
deadline must also satisfy Section II.B.1.f of this order.
d. If a petitioner submitting a hearing request, intervention
petition, or motion for leave to file new or amended contentions or
claims of incompleteness after the deadline believes that some aspect
of operation must be stayed until action is taken in the hearing
process, then that petitioner has the burden of submitting its stay
request simultaneously with the hearing request, intervention petition,
or motion for leave to file new or amended contentions or claims of
incompleteness. If the petitioner does not include a stay request with
its pleading, the petitioner will have constructively waived its right
to request a stay at a later time.
4. Effect of Hearing Requests, Intervention Petitions, and New or
Amended Contentions Filed After the Original Deadline on Interim
Operation
a. The provisions in Sections II.B.3 of this order also apply to
hearing requests, intervention petitions, and motions for leave to file
new or amended contentions that are filed by petitioners after the
original deadline.
5. Answers
a. The provisions in Sections II.B.4.a and II.B.4.b of this order
also apply to answers to hearing requests, intervention petitions, and
motions for leave to file new or amended contentions or claims of
incompleteness filed after the original deadline, except that answers
to filings from petitioners are due within 14 days of service of the
hearing request, intervention petition, or motion for leave to file a
new or amended contention or claim of incompleteness filed after the
original deadline.
b. Replies to answers are not permitted. If the Commission grants
the hearing request, intervention petition, or motion for leave to file
new or amended contentions filed after the original deadline, the
Commission may determine that additional briefing is necessary to
support an adequate protection determination on interim operation in
accordance with Section II.B.4.c of this order.
6. Timing for Decision on Hearing Requests, Intervention Petitions,
and Motions for Leave to File New or Amended Contentions or Claims of
Incompleteness Filed After the Original Deadline
a. Unless the Commission extends the time for its review, the
Commission will rule on a hearing request, intervention petition, or
motion for leave to file a new or amended contention or claim of
incompleteness filed after the original deadline within 30 days of the
filing of answers. If a decision on the admissibility of an amended
contention is delegated to a licensing board or a single legal judge
(assisted as appropriate by technical advisors), the Commission expects
the presiding officer to rule on the amended contention within 30 days
of the filing of answers. Further procedures governing presiding
officer rulings on amended contentions would be included in a
Commission order issued concurrently with its decision on the hearing
request.
b. A Commission interim operation determination need not be made in
conjunction with a ruling on a hearing request, intervention petition,
or new or amended contention after the deadline.
H. Reopening the Record
1. The NRC's existing rule in 10 CFR 2.326 will apply to any effort
to reopen the record.
I. Commission Review of Presiding Officer Decisions
1. Because the Commission, itself, will be ruling on the hearing
request, the only possible decision before this ruling that would not
be made by the Commission would be on requests for review of NRC staff
determinations on access to SUNSI or SGI. Any appeals of such decisions
will be governed by Section II.I.2 of this order; 10 CFR 2.311 does not
apply to this proceeding.
2. Interlocutory Appeals
a. Participants or petitioners may appeal to the Commission a
presiding officer ruling with respect to a request for access to SUNSI
(including, but not limited to, proprietary, confidential commercial,
and security-related information) or SGI. Because of the expedited
nature of the proceeding, such an appeal shall be filed within 7 days
after service of the order. The appeal shall be initiated by the filing
of a notice of appeal and accompanying supporting brief. Any
participant or petitioner may file a brief in opposition within 7 days
after service of the appeal. The supporting brief and any answer shall
conform to the requirements of 10 CFR 2.341(c)(3). A presiding officer
order denying a request for access to SUNSI or SGI may be appealed by
the requestor only on the question of whether the request should have
been granted in whole or in part. A presiding officer order granting a
request for access to SUNSI or SGI may only be appealed on the question
of whether the request should have been denied in whole or in part.
However, such a question with respect to SGI may only be appealed by
the NRC staff, and such a question with respect to SUNSI may be
appealed only by the NRC staff or by a person whose interest
independent of the proceeding would be harmed by the release of the
information.
b. The Commission does not expect appeals seeking to overturn a
denial of access to SUNSI or SGI to delay any aspect of the proceeding
unless the requestor can show irreparable harm.
3. Certified Questions/Referred Rulings
[[Page 5862]]
a. The Commission recognizes that there may be unusual cases that
merit a certified question or referred ruling from the presiding
officer, notwithstanding the potential for delay. Therefore, the
provisions regarding certified questions or referred rulings in 10 CFR
2.323(f) and 2.341(f)(1) apply to this proceeding. However, the
proceeding is not stayed by the presiding officer's referral of a
ruling or certification of a question. Where practicable, the presiding
officer should first rule on the matter in question and then seek
Commission input in the form of a referred ruling to minimize delays in
the proceeding during the pendency of the Commission's review.
J. Stays of Decisions or Actions
1. 10 CFR 2.342 and 2.1213 are applicable to this proceeding with
the following exceptions:
a. The deadline in Sec. 2.342 for filing either a stay application
or an answer to a stay application is shortened to 7 days.
b. The deadline in Sec. 2.1213(c) to file an answer supporting or
opposing a stay application is shortened to 7 days.
c. A request to stay the effectiveness of the Commission's decision
on interim operation will not be entertained. The Commission's decision
on interim operation becomes final agency action once the NRC staff
makes the finding under 10 CFR 52.103(g) that the acceptance criteria
are met and issues an order allowing interim operation.
K. Additional Provisions
1. The following provisions in 10 CFR part 2 apply to this
proceeding as written and in accordance with Commission case law,
except as otherwise noted:
a. 10 CFR 2.4 (Definitions): With the clarification that this
proceeding is considered a ``contested proceeding.''
b. 10 CFR 2.8 (Information collection requirements: OMB approval).
c. 10 CFR 2.111 (Prohibition on sex discrimination).
d. 10 CFR 2.302 (Filing of documents): The initial request for
access to SUNSI or SGI under the SUNSI-SGI Access Order will be made in
accordance with the provisions of the SUNSI-SGI Access Order. For all
other filings, 10 CFR 2.302 applies with the exception that subsections
(b)(1) and (d)(2), which relate to first-class mail delivery, do not
apply. When the presiding officer has approved a method other than
electronic filing through the E-Filing system, documents filed in this
proceeding must be transmitted either by fax, email, or overnight mail
to ensure expedited delivery. Use of overnight mail will only be
allowed if fax or email is impractical. In addition, for documents that
are too large for the E-Filing system but could be filed through the E-
Filing system if segmented into smaller files, the filer must segment
the document and file the segments separately.
e. 10 CFR 2.303 (Docket).
f. 10 CFR 2.304 (Formal requirements for documents; signatures;
acceptance for filing).
g. 10 CFR 2.305 (Service of documents, methods, proof): The initial
request for access to SUNSI or SGI under the SUNSI-SGI Access Order
will be made in accordance with the provisions of the SUNSI-SGI Access
Order. For all other filings, 10 CFR 2.305 applies with the exception
that when the presiding officer has approved a method other than
electronic service through the E-Filing system, service must be made
either by fax, email, or overnight mail in order to ensure expedited
delivery. Use of overnight mail will only be allowed if fax or email is
impractical.
h. 10 CFR 2.306 (Computation of time): With the exception that
subsections (b)(1) through (b)(4), which allow additional time for mail
delivery, do not apply. Because overnight delivery will result in only
minimal delay, it is not necessary to extend the time for a response.
i. 10 CFR 2.313 (Designation of presiding officer,
disqualification, unavailability, and substitution): With the exception
that subsection (a) does not apply because this order governs the
selection of the presiding officer.
j. 10 CFR 2.314 (Appearance and practice before the Commission in
adjudicatory proceedings): With the exception that, to expedite the
proceeding, the time to appeal a disciplinary sanction under subsection
(c)(3) is modified to 10 days after the issuance of the order imposing
sanctions.
k. 10 CFR 2.315 (Participation by a person not a party).
l. 10 CFR 2.316 (Consolidation of parties).
m. 10 CFR 2.317 (Separate hearings; consolidation of proceedings).
n. 10 CFR 2.318 (Commencement and termination of jurisdiction of
presiding officer).
o. 10 CFR 2.319 (Power of the presiding officer): Subsections (a),
(c), (d), (e), (g), (h), (i), (j), (k), (l), (m), (p), (q), (r), and
(s) apply in their entirety. Subsection (b) applies with the
clarification that this provision will not be used for purposes of
discovery since there is no discovery before a contention is admitted.
Subsection (f) does not apply because depositions are not allowed in
this proceeding. Subsections (n) and (o) do not apply because they
concern matters arising after a contention is admitted.
p. 10 CFR 2.320 (Default).
q. 10 CFR 2.321 (Atomic Safety and Licensing Boards).
r. 10 CFR 2.324 (Order of procedure).
s. 10 CFR 2.329 (Prehearing conference).
t. 10 CFR 2.330 (Stipulations).
u. 10 CFR 2.331 (Oral argument before the presiding officer).
v. 10 CFR 2.335 (Consideration of Commission rules in
adjudications).
w. 10 CFR 2.343 (Oral argument).
x. 10 CFR 2.346 (Authority of the Secretary).
y. 10 CFR 2.347 (Ex parte communications).
z. 10 CFR 2.348 (Separation of functions).
aa. 10 CFR 2.390 (Public inspections, exemptions, requests for
withholding).
Order Imposing Procedures for Access to Sensitive Unclassified Non-
Safeguards Information and Safeguards Information for Contention
Preparation
A. This order contains instructions regarding how potential parties
to this proceeding may request access to documents containing sensitive
unclassified information (including sensitive unclassified non-
safeguards information (SUNSI) and Safeguards Information (SGI)).
Requirements for access to SGI are primarily set forth in 10 CFR parts
2 and 73. Nothing in this order is intended to conflict with the SGI
regulations unless this order expressly provides otherwise.
B. Within 10 days after publication of this notice of intended
operation, any potential party who believes access to SUNSI or SGI is
necessary to formulate contentions may request access to SUNSI or SGI.
A ``potential party'' is any person who intends to participate as a
party by demonstrating standing and filing an admissible contention in
accordance with the instructions in the notice of intended operation.
C. Requests for access to SUNSI or SGI submitted later than 10 days
after the publication of this notice will not be considered absent a
showing of good cause for the late filing, addressing why the request
could not have been filed earlier. To show good cause, the potential
party must demonstrate that its request for access to SUNSI or SGI has
been filed by the later of (a) 10 days from the date that the existence
of the SUNSI or SGI document becomes public information, or (b) 10 days
from the availability of new information giving rise to the need for
the SUNSI or SGI to formulate the contention.
[[Page 5863]]
D. (1) The requestor shall request permission to access SUNSI, SGI,
or both by email submitted to the Office of the Secretary, U.S. Nuclear
Regulatory Commission, Attention: Rulemakings and Adjudications Staff,
[email protected]; with copies being sent to the Deputy General
Counsel for Licensing, Hearings, and Enforcement, Office of the General
Counsel, [email protected]; and Michael Spencer,
Counsel for the NRC staff, [email protected]. If it is
impractical for the requestor to email its request, then the requestor
must submit the letter by overnight mail on the date the request is
due. The addresses for overnight mail are as follows: (a) Office of the
Secretary, U.S. Nuclear Regulatory Commission, Attention: Rulemakings
and Adjudications Staff, Mail Stop OWFN 16-B33, 11555 Rockville Pike,
Rockville, Maryland 20852; (b) Deputy General Counsel for Licensing,
Hearings, and Enforcement, Office of the General Counsel, U.S. Nuclear
Regulatory Commission, Mail Stop OWFN 14-A44, 11555 Rockville Pike,
Rockville, Maryland 20852; and (c) Michael Spencer, Counsel for the NRC
staff, U.S. Nuclear Regulatory Commission, Mail Stop OWFN 14-A44, 11555
Rockville Pike, Rockville, Maryland 20852.\24\ The request must include
the following information:
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\24\ While a request for hearing and other filings in this
proceeding must be made through the E-Filing system in accordance
with the provisions set forth in this notice, the initial request to
access SUNSI and/or SGI under these procedures should be submitted
as described in this paragraph.
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(i) A citation to this Federal Register notice and a statement that
the information is being requested with respect to a hearing on
conformance with the acceptance criteria in the combined license for
Vogtle Electric Generating Plant Unit 4;
(ii) The name and address of the potential party and a description
of the potential party's particularized interest that could be harmed
by a finding by the NRC that the acceptance criteria in the combined
license are met;
(iii) If the request is for SUNSI, the identity of the individual
or entity requesting access to SUNSI and the requestor'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;
(iv) 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
requestor in evaluating the SGI. The request should state that the
background check forms and fees required by Section D.(2) of this order
have been submitted for these individuals. In addition, the request
must contain 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:
(A) 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; \25\ and
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\25\ 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
requestor's need to know than ordinarily would be applied in
connection with an already-admitted contention or non-adjudicatory
access to SGI.
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(B) The technical competence (demonstrable knowledge, skill,
training or education) of the requestor 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.
(2) If the request is for access to SGI, certain forms and fees
shall be submitted as specified by Sections D.(2)(a) through D.(2)(e)
of this order to support an NRC determination on trustworthiness and
reliability. To initiate the background check, Form FD-258 (fingerprint
card) and Form SF-85, ``Questionnaire for Non-Sensitive Positions,''
must be completed and submitted. The requestor should contact the NRC's
Office of Administration at (301) 415-3710 to request a package
containing the Form FD-258 and to obtain access to Form SF-85. To
obtain access to Form SF-85, each individual for whom a background
check is being requested will be asked to provide the individual's full
legal name, social security number, date and place of birth, telephone
number, and email address.\26\ Instructions for completing these two
forms will be provided directly to the individual for whom the
background check is being requested.
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\26\ After providing this information, the individual usually
should be able to obtain access to the online Form SF-85 within two
business days.
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(a) A completed Form SF-85 shall be submitted for each individual
who would have access to SGI and who did not submit this form as part
of the pre-clearance process announced at 85 FR 75380. 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 C, 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 a secure website that is owned
and operated by the investigative agency performing the background
check.
(b) A completed Form FD-258 (fingerprint card), signed in original
ink, shall be submitted in accordance with Section D.(2)(e) for each
individual who would have access to SGI and who did not submit this
form as part of the pre-clearance process announced at 85 FR 75380. 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 a Federal Bureau of Investigation
identification and criminal history records check.
(c) A check or money order payable in the amount of $318.00 to the
U.S. Nuclear Regulatory Commission shall be submitted in accordance
with Section D.(2)(e) for each individual for whom the request for
access is being submitted and who did not pay this fee as part of the
pre-clearance process announced at 85 FR 75380.
(d) If the requestor or any individual who will have access to SGI
believes they belong to one or more of the categories of individuals
that are exempt from the criminal history records check and background
check requirements in 10 CFR 73.59, the requestor should also provide a
statement identifying which exemption the requestor is invoking and
explaining the requestor's basis for believing that the exemption
applies. This statement shall be submitted in accordance with Section
D.(2)(e). While processing the request, the Office of Administration
will make a final determination on whether the claimed 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,
still apply.
[[Page 5864]]
(e) Copies of documents and materials required by Sections
D.(2)(b), (c), and (d) of this order must be sent to the following
address by overnight mail: U.S. Nuclear Regulatory Commission, Office
of Administration, Personnel Security Branch, ATTN: SGI Background
Check Materials for ITAAC Hearing, Mail Stop TWFN 07-D04M, 11555
Rockville Pike, Rockville, MD 20852.
These documents and materials should not be included with the
request letter to the Office of the Secretary.
E. 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.
F. Based on an evaluation of the information submitted under
Section D.(1), the NRC staff will determine within 10 days of receipt
of the request whether:
(1) There is a reasonable basis to believe the requestor 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 established a need to know the SGI requested.
G. For requests for access to SUNSI, if the NRC staff determines
that the requestor satisfies both Sections F.(1) and F.(2), the NRC
staff will notify the requestor in writing that access to SUNSI has
been granted. The written notification will contain instructions on how
the requestor may obtain copies of the requested documents and any
other conditions that may apply to access to those documents. These
conditions may include, but are not limited to, the signing of a non-
disclosure agreement or affidavit, or protective order \27\ setting
forth terms and conditions to prevent the unauthorized or inadvertent
disclosure of SUNSI by each individual who will be granted access to
SUNSI. The approved protective order templates announced at 84 FR 3515
should serve as a basis for case-specific protective orders, as
appropriate. In addition, the NRC staff must also inform any person
whose interest independent of the proceeding would be harmed by the
release of the information.
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\27\ Any motion for protective order or draft non-disclosure
affidavit or agreement for SUNSI must be filed with the single legal
judge designated to rule on the request (or the Chief Administrative
Judge if a single legal judge has not yet been designated) within 10
days after a positive access determination is made. If such motion
is filed with the Chief Administrative Judge, the Chief
Administrative Judge will designate a single legal judge to rule on
the motion.
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H. For requests for access to SGI, if the NRC staff determines that
the requestor has satisfied both Sections F.(1) and F.(2), 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 are not limited to, the
signing of a non-disclosure agreement or affidavit, or protective order
\28\ by each individual who will be granted access to SGI. The approved
protective order templates announced at 84 FR 3515 should serve as a
basis for case-specific protective orders, as appropriate.
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\28\ Any motion for protective order or draft non-disclosure
affidavit or agreement for SGI must be filed with the single legal
judge designated to rule on the request (or the Chief Administrative
Judge if a single legal judge has not yet been designated) within 10
days after a positive access determination is made. If such a motion
is filed with the Chief Administrative Judge, the Chief
Administrative Judge will designate a single legal judge to rule on
the motion.
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I. 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.
J. Filing of Contentions. Any contentions in this proceeding that
are based upon the information received as a result of a request for
SUNSI or SGI must be filed by the requestor no later than 20 days after
the requestor receives access to that information. However, if more
than 20 days remain between the date the petitioner receives access to
the information and the deadline for filing the hearing request (as
established in the notice of intended operation), the petitioner may
file its SUNSI or SGI contentions by that later deadline.
K. Review of Denials of Access.
(1) If the request for access to SUNSI or SGI is denied by the NRC
staff either after a determination on standing and requisite need, or
after a determination on trustworthiness and reliability, the NRC staff
shall immediately notify the requestor in writing, briefly stating the
reason or reasons for the denial.
(2) Before the Office of Administration makes a final adverse
determination regarding the proposed recipient(s) trustworthiness and
reliability for access to SGI, the Office of Administration, in
accordance with 10 CFR 2.336(f)(1)(iii), must provide the proposed
recipient(s) any records that were considered in the trustworthiness
and reliability determination, including those required to be provided
under 10 CFR 73.57(e)(1), so that the proposed recipient(s) have an
opportunity to correct or explain the record. A recipient's challenge
under 10 CFR 2.336(f)(1)(iii)(B) to the completeness and accuracy of
the records relied on by the Office of Administration in making its
initial adverse trustworthiness and reliability determination must be
submitted within 7 days of the recipient's receipt of the records from
the Office of Administration.\29\
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\29\ The time period for a challenge under 10 CFR
2.336(f)(1)(iii)(B) has been reduced from 10 days to 7 days in order
to expedite the proceeding and to be consistent with the 7-day
period given in this order for interlocutory appeals of presiding
officer determinations on access to SUNSI or SGI.
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(3) The requestor may challenge the NRC staff's adverse
determination with respect to access to SUNSI by filing a request for
review within 5 days of receipt of that determination with the Chief
Administrative Judge, who will designate a single legal judge (assisted
as appropriate by technical advisors) to rule on the challenge.\30\ The
NRC staff may respond to a request for review within 5 days of service
of the request.
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\30\ Requestors should note that appeals of NRC staff
determinations and other filings must be made through the E-Filing
system in accordance with the provisions set forth in this notice
even though the initial SUNSI/SGI request submitted to the NRC staff
under these procedures was made by other means.
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(4) The requestor may challenge the NRC staff's adverse
determination on need to know or likelihood of establishing standing
with respect to access to SGI by filing a request for review with the
Chief Administrative Judge within 5 days of receipt of the adverse
determination, and the NRC staff may file a response within 5 days of
receipt of the request for review. The requestor may challenge the NRC
Office of Administration's adverse determination on trustworthiness and
reliability for access to SGI by filing a request for review with the
Chief Administrative Judge within 7 days of receipt of the adverse
determination, and the NRC staff may file a response within 7 days of
receipt of the request
[[Page 5865]]
for review.\31\ The Chief Administrative Judge will assign a single
legal judge (assisted as appropriate by technical advisors) to rule on
the challenge. If the challenge relates to an adverse determination by
the NRC Office of Administration on trustworthiness and reliability for
access to SGI, then consistent with 10 CFR 2.336(f)(1)(iv), neither the
single legal judge chosen to rule on the challenge nor any technical
advisors supporting a ruling on the challenge can serve as the
presiding officer for the ITAAC proceeding.
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\31\ The time periods for filing requests for review (and
responses thereto) under 10 CFR 2.336(f)(1)(iv) have been reduced to
7 days in order to expedite the proceeding and to be consistent with
the 7-day period given in this order for interlocutory appeals (and
answers thereto) of presiding officer determinations on access to
SUNSI or SGI. Other than the time periods for filing, requests for
review of final adverse determinations by the Office of
Administration on trustworthiness and reliability (and NRC staff
responses to requests for review) must comply with 10 CFR
2.336(f)(1)(iv).
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(5) Appeals of presiding officer decisions on access to SUNSI or
SGI must be made pursuant to the provisions of the ``Order Imposing
Additional Procedures for ITAAC Hearings Before a Commission Ruling on
the Hearing Request'' (Additional Procedures Order) that was issued
with this notice.
L. Review of Grants of Access. A person other than the requestor
may file a request for review challenging an NRC staff determination
granting access to SUNSI whose release would harm that person's
interest independent of the proceeding.\32\ Such a request for review
must be filed with the Chief Administrative Judge within 5 days of the
notification by the NRC staff of its grant of access, and the NRC staff
may respond to a request for review within 5 days of receiving it. The
Chief Administrative Judge will designate a single legal judge
(assisted as appropriate by technical advisors) to rule on the
challenge. Appeals of presiding officer decisions on access to SUNSI
must be made pursuant to the provisions of the Additional Procedures
Order that was issued with this notice.
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\32\ An NRC staff determination to grant access to SGI may not
be challenged.
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M. The Commission expects that the NRC staff and the presiding
officer 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
requirements in this notice. Attachment 2 to this order summarizes the
target schedule for processing and resolving requests under these
procedures.
It is so ordered.
Dated: January 27, 2022.
For the Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
Attachment 2--Target Schedule for Processing and Resolving Requests for Access to Sensitive Unclassified Non-
Safeguards Information and Safeguards Information in This Proceeding
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Day Event/activity
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0................................................... Publication of Federal Register notice of intended
operation, including order with instructions for access
requests.
10.................................................. Deadline for submitting requests for access to Sensitive
Unclassified Non[dash]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 this 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.
20.................................................. Nuclear Regulatory Commission (NRC) staff informs the
requestor of the staff's determination on 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 person 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 continues processing the background check
(including fingerprinting for a criminal history records
check), and begins 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 the requestor to
file a request for review seeking a ruling to reverse the
NRC staff's denial of access; NRC staff files copy of
access determination with the Chief Administrative Judge.
If NRC staff finds ``need'' for SUNSI, the deadline for
any person whose interest independent of the proceeding
would be harmed by the release of the information to file
a request for review seeking a ruling to reverse the NRC
staff's grant of access.
30.................................................. Deadline for NRC staff reply to requests for review of NRC
staff determination(s).
30.................................................. (Receipt +20) 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.
60.................................................. Deadline for submitting a hearing request containing: (i)
A demonstration of standing and (ii) all contentions
whose formulation does not require access to SUNSI and/or
SGI (+25 for answers to hearing request).
Staff SGI Determination Date + 7.................... Deadline for requestor to seek reversal of a final adverse
NRC Office of Administration trustworthiness or
reliability determination under 10 CFR 2.336(f)(1)(iv).
Staff SGI Determination Date + 10 \33\.............. 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.
A................................................... If access granted: Issuance of presiding 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.
Receipt of Access + 20 days......................... Deadline for submission of contentions whose development
depends upon access to SUNSI and/or SGI. However, if more
than 20 days remain between the requestor's access to the
information and the deadline for filing the hearing
request (as established in the notice of intended
operation), the requestor may file its SUNSI or SGI
contentions by that later deadline.
Contention Receipt + 14 days........................ (Contention receipt + 14 days) Answers to contentions
whose development depends upon access to SUNSI and/or
SGI.
[[Page 5866]]
Filing of answers + 30.............................. Decision on contention admissibility.
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\33\ The completion time for access determinations may vary
based on the information revealed during the background check
(including a criminal history records check), and because some
portion of the background check is usually conducted by agencies
other than the NRC, the processing time may vary and is difficult to
predict with any certainty. However, the NRC staff will make its
utmost efforts to complete all activities associated with requests
for access to SGI as soon as possible.
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[FR Doc. 2022-01983 Filed 2-1-22; 8:45 am]
BILLING CODE 7590-01-P