In the Matter of U.S. Department of Energy (High Level Waste Repository); Notice of Hearing and Opportunity To Petition for Leave To Intervene on an Application for Authority To Construct a Geologic Repository at a Geologic Repository Operations Area at Yucca Mountain, 63029-63033 [E8-25293]

Download as PDF Federal Register / Vol. 73, No. 205 / Wednesday, October 22, 2008 / Notices prior to the meeting to be advised of any potential changes in the agenda. Dated: October 15, 2008. Cayetano Santos, Branch Chief, ACRS. [FR Doc. E8–25147 Filed 10–21–08; 8:45 am] [Docket No. 63–001; CLI–08–25] NUCLEAR REGULATORY COMMISSION sroberts on PROD1PC70 with NOTICES Advisory Committee on Reactor Safeguards (ACRS) Meeting of the Subcommittee on Plant License Renewal; Notice of Meeting The ACRS Subcommittee on Plant License Renewal will hold a meeting on November 5, 2008, Room T–2B3, 11545 Rockville Pike, Rockville, Maryland. The entire meeting will be open to public attendance. The agenda for the subject meeting shall be as follows: Wednesday, November 5, 2008—1:30 p.m. until 5 p.m. The Subcommittee will discuss the Vogtle Electric Generating Plant (VEGP), Unit 1 and 2 license renewal application and the associated Safety Evaluation Report (SER). The Subcommittee will hear presentations by and hold discussions with representatives of the NRC staff, VEGP, Southern Nuclear Company, and other interested persons regarding this matter. The Subcommittee will gather information, analyze relevant issues and facts, and formulate proposed positions and actions, as appropriate, for deliberation by the Full Committee. Members of the public desiring to provide oral statements and/or written comments should notify the Designated Federal Official, Mr. Christopher Brown (telephone 301–415–7111) five days prior to the meeting, if possible, so that appropriate arrangements can be made. Electronic recordings will be permitted. Detailed procedures for the conduct of and participation in ACRS meetings were published in the Federal Register on October 6, 2008 (73 FR 58268– 58269). Further information regarding this meeting can be obtained by contacting the Designated Federal Official between 6:45 a.m. and 3:30 p.m. (ET). Persons planning to attend this meeting are urged to contact the above named individual at least two working days prior to the meeting to be advised of any potential changes to the agenda. 17:50 Oct 21, 2008 BILLING CODE 7590–01–P NUCLEAR REGULATORY COMMISSION BILLING CODE 7590–01–P VerDate Aug<31>2005 Dated: October 16, 2008. Cayetano Santos, Branch Chief, ACRS. [FR Doc. E8–25149 Filed 10–21–08; 8:45 am] Jkt 217001 In the Matter of U.S. Department of Energy (High Level Waste Repository); Notice of Hearing and Opportunity To Petition for Leave To Intervene on an Application for Authority To Construct a Geologic Repository at a Geologic Repository Operations Area at Yucca Mountain COMMISSIONERS: Dale E. Klein, Chairman; Gregory B. Jaczko, Peter B. Lyons, Kristine L. Svinicki. I. Notice of Hearing By letter dated June 3, 2008, the Department of Energy (DOE) submitted an application seeking authorization to construct a geologic repository at a geologic repository operations area at Yucca Mountain in Nye County, Nevada. The NRC published a notice of receipt and availability of this application in the Federal Register (73 FR 34348, corrected in 73 FR 40883 (June 17, 2008)). Notice is hereby given that a hearing on the application will be held at a time and place to be set in the future by the Nuclear Regulatory Commission (the Commission) or an Atomic Safety and Licensing Board (Board). The hearing will consider the application for construction authorization filed by DOE pursuant to Section 114 of the Nuclear Waste Policy Act of 1982 (NWPA), 42 U.S.C. 10134, and pursuant to 10 CFR Parts 2 and 63. The NRC Staff accepted the DOE application for docketing on September 8, 2008 (73 FR 53284 (September 15, 2008)), and the docket number established for this application is 63– 001. The NRC Staff determined that it is practicable to adopt, with further supplementation, the Environmental Impact Statement (EIS) and supplements prepared by DOE. The Staff concluded that neither the 2002 Final Environmental Impact Statement (FEIS) nor the 2008 Final Supplemental Environmental Impact Statement (Repository Supplemental EIS) adequately address all the impacts on groundwater, or from surface discharges of groundwater, from the proposed action. The Staff therefore found that additional supplementation is needed to PO 00000 Frm 00081 Fmt 4703 Sfmt 4703 63029 ensure that the 2002 FEIS and 2008 Repository Supplemental EIS are adequate. The basis for the Staff’s position is presented in the ‘‘U.S. Nuclear Regulatory Commission Staff’s Adoption Determination Report for the U.S. Department of Energy’s Environmental Impact Statements for the Proposed Geologic Repository at Yucca Mountain,’’ which is available in the Agencywide Documents Access and Management System (ADAMS) online document system at http://www.nrc.gov/ reading-rm/adams/web-based.html, at accession number ML082420342. The NRC Staff will complete a detailed technical review of the DOE application, and will document its findings in a safety evaluation report. If the Commission finds that the DOE application meets the applicable standards of the Atomic Energy Act of 1954, as amended (AEA), the NWPA, and the Commission’s regulations, then the Commission will issue a construction authorization, in the form and containing such conditions and limitations, if any, as the Commission finds appropriate and necessary. II. Opportunity To Petition for Leave To Intervene A hearing on DOE’s construction authorization application will be held in the public interest pursuant to 10 CFR 2.101(e)(8). The hearing will be governed by the rules of procedure in 10 CFR Part 2, Subpart C, ‘‘Rules of General Applicability: Hearing Requests, Petitions to Intervene, Availability of Documents, Selection of Specific Hearing Procedures, Presiding Officer Powers, and General Hearing Management for NRC Adjudicatory Hearings’’; Subpart J, ‘‘Procedures Applicable to Proceedings for the Issuance of Licenses for the Receipt of High-Level Radioactive Waste at a Geologic Repository’’; and Subpart G, ‘‘Rules for Formal Adjudications.’’ The matters of fact and law to be considered are whether the application satisfies the applicable safety, security, and technical standards of the AEA and NWPA and the NRC’s standards in 10 CFR Part 63 for a construction authorization for a high-level waste geologic repository, and also whether the applicable requirements of the National Environmental Policy Act (NEPA) and NRC’s NEPA regulations, 10 CFR Part 51, have been met. Any person whose interest may be affected by this proceeding and who desires to participate as a party must file a written petition for leave to intervene in accordance with the requirements in 10 CFR 2.309, including contentions that satisfy the admissibility standards E:\FR\FM\22OCN1.SGM 22OCN1 sroberts on PROD1PC70 with NOTICES 63030 Federal Register / Vol. 73, No. 205 / Wednesday, October 22, 2008 / Notices in § 2.309. Petitioners seeking to intervene as parties must also comply with the procedural case management requirements set forth in the Advisory Pre-License Application Presiding Officer (PAPO) Board’s Memorandum and Order, LBP–08–10 (Case Management Order Concerning Petitions to Intervene, Contentions, Responses, Replies, Standing Arguments, and Referencing or Attaching Supporting Materials), dated June 20, 2008, available at ADAMS accession number ML081720154, and the Advisory PAPO Board’s Order (Regarding Contention Formatting and Tables of Contents), dated September 29, 2008, available at ADAMS accession number ML082730764. In addition, as outlined further below, the regulations in 10 CFR Part 2, Subpart J require electronic production, filing and service of all documents in this proceeding. In ruling on a petition to intervene in this proceeding, the presiding officer shall consider any failure of the petitioner to participate as a potential party in the pre-license application phase under 10 CFR Part 2, Subpart J, in addition to the factors on standing to intervene outlined in 10 CFR 2.309(d). A petition for leave to intervene must be filed no later than 60 days after the date of publication of this notice in the Federal Register. A non-timely petition or contention will not be entertained unless the Commission, an Atomic Safety and Licensing Board, or a presiding officer designated to rule on the petition determines that the late petition or contention meets the latefiled requirements of 10 CFR 2.309(c)(1)(i)–(viii). Certain hearing schedule milestones in Appendix D to 10 CFR Part 2, as well as the 30-day hearing petition and contention-filing deadlines set forth in 10 CFR 2.309(b)(2) and 51.109(a)(2) are superseded by this notice. A revised hearing schedule with new milestones for actions through the First Prehearing Conference Order appears in Section VI of this notice. Those permitted to intervene become parties to the proceeding, subject to any limitations in the order granting leave to intervene, and will have the opportunity to participate fully in the conduct of the hearing. The regulations in 10 CFR Part 2, Subpart J require electronic document production (via the Licensing Support Network) and electronic filing and service of adjudicatory documents via the Electronic Information Exchange (EIE). This requirement applies to all documents filed in the proceeding, including a petition for leave to intervene, and any motion or other VerDate Aug<31>2005 17:50 Oct 21, 2008 Jkt 217001 document filed in the proceeding prior to the submission of a petition to intervene. Pursuant to 10 CFR 2.1012(b)(1), a petitioner, including a potential party given access to the Licensing Support Network, may not be granted party status under 10 CFR 2.309, or status as an interested governmental participant under 10 CFR 2.315, if the petitioner cannot demonstrate substantial and timely compliance with the requirements in 10 CFR 2.1003 at the time of the request for participation in the high-level waste proceeding.1 In addition, a petitioner will not be found to be in substantial and timely compliance unless the petitioner complies with all orders of the Pre-License Application Presiding Officer (PAPO) regarding electronic availability of documents. PAPO orders are available on the NRC’s high-level waste electronic hearing docket at: http://hlwehd.nrc.gov/Public_HLWEHD/home.asp, under HLW–EHD, folder titled PAPO_HLW, subfolder titled Orders_PAPO. A petition for leave to intervene, and all filings in the adjudicatory proceeding, must be filed electronically in accordance with 10 CFR 2.1013(c)(1). At least 30 days prior to the filing deadline for a petition to intervene, the petitioner must contact the Office of the Secretary (SECY) by e-mail at: HEARINGDOCKET@NRC.GOV or by calling (301) 415–1677, to request (1) a digital ID certificate, which allows the participant (or its counsel or representative) to digitally sign documents and access the E-Submittal server for any proceeding in which it is participating; and/or (2) creation of an electronic docket for the proceeding (even in instances in which the petitioner, or its counsel or representative, already holds an NRCissued digital certificate). Each petitioner will need to download the Workplace Forms ViewerTM to access the EIE, a component of the E-Filing system. The Workplace Forms ViewerTM is free and is available at http:// www.nrc.gov/site-help/e-submittals/ install-viewer.html. Information about applying for a digital ID certificate is available on the NRC’s public Web site at http://www.nrc.gov/site-help/esubmittals/apply-certificates.html. 1 A person denied party or interested governmental participant status under 10 CFR 2.1012(b)(1) may request such status upon a showing of subsequent compliance with the requirements of 10 CFR 2.1003. The subsequent admission of such a party or interested governmental participant shall be conditioned on accepting the status of the proceeding at the time of admission. PO 00000 Frm 00082 Fmt 4703 Sfmt 4703 Once a petitioner has obtained a digital ID certificate, has had a docket created, and has downloaded the EIE viewer, the petitioner can then submit a petition for leave to intervene. Submissions should be in Portable Document Format (PDF) in accordance with NRC guidance available on the NRC public Web site at http:// www.nrc.gov/site-help/esubmittals.html. Guidance for Electronic Submissions to the NRC is a consolidated guidance document that sets forth the technical standards for electronic transmission and formatting electronic documents, and provides instructions on how to obtain and use the agency-provided digital ID certificate. A person who holds a current digital ID certificate for use in the proceedings before the PAPO or the Advisory PAPO need not obtain a new certificate. That certificate will remain valid for this proceeding. Section 2.1013(c) defines service as completed when the filer/sender receives electronic acknowledgement (‘‘delivery receipt’’) that the electronic submission has been placed in the recipient’s electronic mailbox. To be timely, an electronic filing must be submitted to the EIE system no later than 11:59 p.m. Eastern Time on the due date. Upon receipt of a transmission, the EFiling system time-stamps the document and sends the submitter an e-mail notice confirming receipt of the document. The EIE system also distributes an e-mail notice that provides access to the document to the NRC Office of 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 applicant and any other participant (or their counsel or representative) must apply for and receive a digital ID certificate before a petition to intervene is filed so that they can obtain access to the document via the E-Filing system. A person filing electronically may seek assistance through the ‘‘Contact Us’’ link located under the heading ‘‘Additional Information’’ on the NRC Web site at http://www.nrc.gov/sitehelp/e-submittals.html or by calling the NRC technical help line, which is available between 8:30 a.m. and 4:15 p.m., Eastern Time, Monday through Friday. The help line number is (800) 397–4209 or locally (301) 415–4737. Documents submitted in adjudicatory proceedings will appear in the NRC’s high-level waste electronic hearing docket at http://hlwehd.nrc.gov/ Public_HLW–EHD/home.asp , unless E:\FR\FM\22OCN1.SGM 22OCN1 Federal Register / Vol. 73, No. 205 / Wednesday, October 22, 2008 / Notices excluded pursuant to an order of the Commission, an Atomic Safety and Licensing Board, or a presiding officer. Participants are requested not to include personal privacy information, such as social security numbers, home addresses, or home phone numbers in the filing. With respect to copyrighted works, except for limited excerpts that serve the purpose of the adjudicatory filing and would constitute a Fair Use application, participants are requested not to include copyrighted materials in their submission. Documents may be examined, and/or copied for a fee, at the NRC’s Public Document Room (PDR), located at One White Flint North, Public File Area 01 F21, 11555 Rockville Pike (first floor), Rockville, Maryland, and will be accessible electronically through the ADAMS Public Electronic Reading Room link at the NRC Web site http:// www.nrc.gov/reading-rm/adams.html. The ADAMS accession number for the ADAMS package containing the DOE application is ML081560400. The ADAMS accession number for the ADAMS package containing DOE’s Final Environmental Impact Statement is ML032690321, and the accession number for the ADAMS package containing DOE’s Final Supplemental Environmental Impact Statement is ML081750191. The ADAMS accession number for the ADAMS package containing DOE’s Final Rail Corridor Supplemental EIS and Rail Alignment EIS is ML082460227. The application is also available at http://www.nrc.gov/ waste/hlw-disposal/yucca-lic-app.html. Persons who do not have access to ADAMS or who encounter problems in accessing documents located in ADAMS should contact the NRC Public Document Room (PDR) Reference staff by telephone at 1–800–397–4209, or 301–415–4737, or by e-mail to pdr@nrc.gov. sroberts on PROD1PC70 with NOTICES III. Additional Matters Pertaining to the Hearing and Intervention Requests A. Standing as of Right Pursuant to 10 CFR 2.309(d)(2)(iii), the Commission shall permit intervention by the State and local governmental body (county, municipality or other subdivision) in which the geologic repository operations area is located, and by any affected Federally-recognized Indian Tribe, as defined in 10 CFR Part 63, if the contention requirements in 10 CFR 2.309(f) are satisfied with respect to at least one contention. Section 2.309(d)(2) specifies that such State, affected Federally-recognized Indian Tribe, and local governmental body need not VerDate Aug<31>2005 17:50 Oct 21, 2008 Jkt 217001 address the standing requirements in 10 CFR 2.309(d). In LBP–08–10, the Advisory PAPO Board requested that the Commission clarify whether an ‘‘affected unit of local government’’ (AULG), as defined in section 2 of the NWPA, as amended (42 U.S.C. 10101), also need not address the standing requirements of section 2.309(d). Any AULG seeking party status shall be considered a party to this proceeding, provided that it files at least one admissible contention in accordance with 10 CFR 2.309. An AULG need not address the standing requirements under that section. B. Environmental Contentions In addition to meeting NRC’s regular contention admissibility requirements in 10 CFR 2.309(f), environmental contentions addressing any DOE environmental impact statement or supplement must also conform to the requirements and address the applicable factors outlined in 10 CFR 51.109 governing NRC’s adoption of DOE’s environmental impact statements. The requirements of section 51.109 should be applied consistent with Nuclear Energy Institute, Inc. v. EPA, 373 F.3d 1251, 1313–14 (D.C. Cir. 2004), a court decision discussing section 51.109, and consistent with the Commission’s denial of the State of Nevada’s petition to amend section 51.109 (73 FR 5762; January 31, 2008), and the Office of the General Counsel’s subsequent letter clarifying the Commission’s denial (Letter from Bradley W. Jones, Assistant General Counsel to Martin G. Malsch, dated March 20, 2008, ADAMS accession number ML080810175). Under 10 CFR 51.109(c), the presiding officer should treat as a cognizable ‘‘new consideration’’ an attack on the Yucca Mountain environmental impact statements based on significant and substantial information that, if true, would render the statements inadequate. Under 10 CFR 51.109(a)(2), a presiding officer considering environmental contentions should apply NRC ‘‘reopening’’ procedures and standards in 10 CFR 2.326 ‘‘to the extent possible.’’ C. Hearing Procedures The construction authorization hearing will be conducted by one or more presiding officers (licensing boards) that will be designated by the Chief Judge of the Atomic Safety and Licensing Board Panel. The Commission anticipates and authorizes the establishment of multiple licensing boards throughout the proceeding. Notice as to the membership of the PO 00000 Frm 00083 Fmt 4703 Sfmt 4703 63031 board(s) will be published at a later date. In 1991, the Commission suggested that it would use the notice of hearing for a high-level waste (HLW) proceeding to announce detailed case management procedures (56 FR 7787, 7793–94 (February 26, 1991)). In the intervening years, however, the Atomic Safety and Licensing Board Panel has engaged in extensive case management planning for this proceeding. The Commission therefore believes that the presiding officer(s) in this proceeding will be in the best position to establish and efficiently resolve case management issues, some of which the Commissionauthorized Advisory PAPO Board resolved in LBP–08–10. D. Scope of the Hearing In accordance with 10 CFR 2.1027, in any initial decision on the application for construction authorization, the presiding officer shall make findings of fact and conclusions of law on, and otherwise give consideration to, only material issues put into controversy by the parties and determined to be litigable in the proceeding. The Commission has determined that the scope of the adjudicatory proceeding on safety, security, or technical issues is limited to litigable contested issues. See State of Nevada; Denial of Petition for Rulemaking, Docket No. PRM–2–14, available at ADAMS accession number ML082900618. The presiding officer has no authority or duty to resolve uncontested issues in those areas. See 10 CFR 2.1023(c)(2) and 10 CFR 2.1027. Notwithstanding the provisions in 2.1023(c)(2) and 10 CFR 2.1027, the presiding officer shall make the environmental findings required by 10 CFR 51.109(e), even on uncontested issues, ‘‘to the extent it is not practicable to adopt the environmental impact statement prepared by the Secretary of Energy.’’ E. Participation by a Non-Party A person who is not a party may be permitted to make a limited appearance statement by making an oral or written statement of his or her position on the issues at any session of the hearing or any pre-hearing conference within the limits and conditions fixed by the presiding officer, but may not otherwise participate in the proceeding. IV. Access to Non-public information Those petitioners who seek access to non-public information must follow the access requirements contained in the PAPO Board’s Third Case Management Order (August 30, 2007), available at ADAMS accession number E:\FR\FM\22OCN1.SGM 22OCN1 63032 Federal Register / Vol. 73, No. 205 / Wednesday, October 22, 2008 / Notices ML072420327. This and other case management orders issued by the PAPO Board govern protection of various categories of protected and privileged information. The Board’s case management orders are available on the high-level waste electronic hearing docket, Docket No. PAPO–00, at http:// hlwehd.nrc.gov/Public_HLW-EHD/ home.asp , under HLW–EHD, folder titled PAPO_HLW, subfolder titled Orders_PAPO. sroberts on PROD1PC70 with NOTICES V. Motions To avoid unnecessary disputes and filings, a party who files a motion must certify, pursuant to 10 CFR 2.323, that he or she has made a reasonable effort to consult with counsel for the applicant and counsel for the NRC staff, as well as other interested counsel or litigants, in an effort to resolve the matter in advance of filing the motion. Motions must also meet all other section 2.323 requirements. VI. Revised Hearing Schedule Milestones In CLI–08–18 (August 13, 2008), available at ADAMS accession number ML082261241, the Commission granted the State of Nevada, as well as any other petitioner, an additional thirty (30) days in which to file a petition to intervene, or a petition for status as an interested government participant, in this proceeding. In addition, the Commission proposed further modifications to the schedule codified in 10 CFR Part 2, Appendix D. The Commission invited any party or potential party participating in the matters before the PAPO Board to provide comments on certain additional proposed extensions of time. The Commission also sought the views of the Atomic Safety and Licensing Board Panel on the reasonableness of current and proposed time frames. The Commission has considered the comments received, and has determined that the revised schedule below will replace certain hearing milestones set forth in Appendix D to 10 CFR Part 2. The Commission hereby doubles the time permitted to file answers and replies, pursuant to 10 CFR 2.309(h)(1) and (2), respectively, to fifty (50) and fourteen (14) days, respectively. The Commission also extends the period for the First Prehearing Conference from eight (8) to sixteen (16) days after the deadline for filing replies, and extends the period for issuance of the First Prehearing Conference Order from thirty (30) to sixty (60) days after the First Prehearing Conference. The revised Appendix D schedule, reflected in the table below, replaces only the VerDate Aug<31>2005 17:50 Oct 21, 2008 Jkt 217001 milestones up to, and including, the First Prehearing Conference Order. The presiding officer retains authority to grant extensions of time of no more than fifteen days, and the Commission retains authority to grant extensions of longer than fifteen days, but in either case the litigant seeking the extension must follow the requirements of 10 CFR 2.1026. Nevada argued that potential parties cannot draft contentions based upon standards that have not been finalized. As a possible remedy, Nevada proposed that today’s notice of hearing include a delay—essentially a bifurcation of contention-filing deadlines—with respect to all issues related to the EPA standards and the NRC’s implementing rules until some date to be determined after the standards and rules are issued. Nevada argued alternatively that this PARTIALLY REVISED APPENDIX D delay could be avoided if the SCHEDULE Commission declined to be bound by its Staff’s decision to docket the Day Action application. 0 ........ Federal Register Notice of Hearing. The Commission recognizes Nevada’s 60 ...... Petition to intervene/request for concern but does not believe Nevada’s hearing, w/contentions. extraordinary remedies are necessary, 110 .... Answers to intervention and inter- especially since the EPA has now issued ested government participant Petithe relevant standards, and the NRC’s tions. regulations are in preparation. Under 124 .... Petitioner’s response to answers. the NRC’s ordinary practice, Nevada 140 .... First Prehearing Conference. 200 .... First Prehearing Conference Order and other hearing petitioners are free to identifying participants in pro- file contentions arguing that the ceeding, admitted contentions, Commission may not authorize and setting discovery and other construction in the absence of schedules. implementing NRC rules. And they are also free to file contentions maintaining The regulatory requirements that DOE’s application does not meet governing the balance of the Appendix EPA’s standards. Such contentions D schedule remain unchanged. would require no change in the contention-filing schedule set out in VII. September 9, 2008, Petition CLI–08–18. Nevada or other hearing On September 9, 2008, the State of petitioners may amend their ‘‘EPA Nevada submitted to the Commission a standards’’-related contentions later, ‘‘petition’’ directed to the content of this after the NRC’s implementing rules are 2 In this petition, Nevada hearing notice. issued, if the new NRC rules establish argues that the Commission cannot fresh grounds for contentions. Under the issue a notice of hearing unless it first unusual circumstances of this case, resolves ‘‘at least three important legal where controlling agency rules have 3 and procedural issues.’’ been delayed, and to ensure that no one Nevada’s first issue, now partially is prejudiced, any contentions so mooted, is the lack of final amended—on EPA standards-related Environmental Protection Agency (EPA) issues only—will be deemed timely for standards and implementing NRC rules admissibility purposes if filed within for the post-10,000 year period. The sixty days after the Federal Register EPA has now established post-10,000 publication of the NRC rules year standards, and the Staff is implementing the new EPA standards.5 developing implementing regulations.4 The second issue Nevada raises in its September 9 Petition concerns a petition 2 Petition to Publish a Fair and Reasonable Notice for rulemaking it filed regarding the of Hearing on DOE’s Yucca Mountain Application specification of issues for the mandatory (Sept. 9, 2008), available at ADAMS accession hearing portion of this proceeding.6 number ML082550289 (September 9 Petition). The procedural identity of Nevada’s ‘‘petition’’ is not obvious. The Commission addresses the issues Nevada raises as part of this notice of hearing solely as a matter of expedience since they touch on topics the Commission already addresses independently. Both DOE and the NRC Staff responded to the September 9 Petition. See U.S. Department of Energy Response to State of Nevada ‘‘Petition to Publish a Fair and Reasonable Notice of Hearing on DOE’s Yucca Mountain Application’’ (Sept. 19, 2008); NRC Staff’s Response to the State of Nevada’s Petition to Publish a Fair and Reasonable Notice of Hearing on DOE’s Yucca Mountain Application (Sept. 19, 2008). 3 September 9 Petition at 3. 4 Final Rule, Public Health and Environmental Radiation Protection Standards for Yucca Mountain, Nevada 73 FR 61,256 (October 15, 2008). PO 00000 Frm 00084 Fmt 4703 Sfmt 4703 5 NRC rules ordinarily call on licensing boards to balance several factors in deciding whether to allow late-filed (or amended) contentions. See 10 CFR 2.309(c)(i)–(viii). In the case of the yet-to-issue NRC rules, however, the Commission is dispensing in advance with all ‘‘late-filed’’ factors except the ‘‘good cause’’ factor. It is obvious even now that promptly-filed and well-pled contentions based on new, previously unavailable NRC rules—rules that will govern important aspects of NRC’s safety review—must be admitted for hearing. There plainly would be ‘‘good cause’’ for filing such contentions late, and no conceivable justification for rejecting them at the threshold. 6 Petition by the State of Nevada for Rulemaking to Specify Issues for the Yucca Mountain Mandatory Hearing (June 19, 2007). E:\FR\FM\22OCN1.SGM 22OCN1 Federal Register / Vol. 73, No. 205 / Wednesday, October 22, 2008 / Notices That petition has now been ruled on, and the Commission’s rulemaking decision is reflected in the discussion of the scope of the hearing addressed in Section III.D, above.7 Finally, the third issue Nevada raises in its September 9 Petition concerns the status of security clearances and access to classified information in the Yucca Mountain construction authorization application. Nevada argues that its representatives have not been informed of decisions on their security clearances and on access to classified information, ‘‘notwithstanding timely applications,’’ so no contentions based on classified information can be prepared.8 To remedy this, Nevada again asks for a bifurcation of contention-filing deadlines. It is the Commission’s understanding that, as of the end of July, one of Nevada’s security clearance applications was complete and was being processed, another application was incomplete, and two applications had been withdrawn.9 From this, the Commission concludes that the timeliness of Nevada’s security clearance applications is factually ambiguous. Moreover, it is not immediately clear that the perceived problem could not be remedied by the provision of redacted versions of classified documents that could provide a basis for the formulation of contentions before the security clearance application reviews are completed. The Commission directs the PAPO Board to resolve both of these questions. It is so ordered. Dated at Rockville, Maryland, this 17th day of October, 2008. For the Commission. Annette L. Vietti-Cook, Secretary of the Commission. [FR Doc. E8–25293 Filed 10–21–08; 8:45 am] sroberts on PROD1PC70 with NOTICES BILLING CODE 7590–01–P 7 See State of Nevada; Denial of Petition for Rulemaking, Docket No. PRM–2–14, available at ADAMS accession number ML082900618. 8 September 9 Petition at 6. 9 See Letter from Aby Mohseni, Deputy Director, Licensing and Inspection Directorate, Division of High-Level Waste Repository Safety, Office of Nuclear Material Safety and Safeguards to Robert R. Loux, Executive Director, Agency for Nuclear Projects, Office of the Governor, State of Nevada (July 31, 2008), available at ADAMS accession number ML081910097. VerDate Aug<31>2005 17:50 Oct 21, 2008 Jkt 217001 NUCLEAR REGULATORY COMMISSION Advisory Committee on Reactor Safeguards (ACRS); Meeting of the ACRS Subcommittee on Economic Simplified Boiling Water Reactor (ESBWR); Corrected Notice of Meeting (Corrected To Note New Meeting Times) The ACRS Subcommittee on the ESBWR will hold a meeting on October 21–22, 2008, Room T–2B3, 11545 Rockville Pike, Rockville, Maryland. The meeting will be open to public attendance, with the exception of a portion that may be closed to protect information that is proprietary to General Electric-Hitachi (GEH) Nuclear Energy and its contractors pursuant to 5 U.S.C. 552b(c)(4). The agenda for the subject meeting shall be as follows: Tuesday, October 21, 2008—1 p.m.–5 p.m Wednesday, October 22, 2008—8:30 a.m.–12 noon. The Subcommittee will review Chapter 14 of the Safety Evaluation Report with Open Items associated with the ESBWR Design Certification Application. The Subcommittee will hear presentations by and hold discussions with representatives of the NRC staff, GEH, and other interested persons regarding this matter. The Subcommittee will gather information, analyze relevant issues and facts, and formulate proposed positions and actions, as appropriate, for deliberation by the full Committee. Members of the public desiring to provide oral statements and/or written comments should notify the Designated Federal Official, Dr. Harold J. Vandermolen, (Telephone: 301–415– 6236) five days prior to the meeting, if possible, so that appropriate arrangements can be made. Electronic recordings will be permitted. Detailed procedures for the conduct of and participation in ACRS meetings were published in the Federal Register on September 26, 2007 (72 FR 54695). Further information regarding this meeting can be obtained by contacting the Designated Federal Official between 8:30 a.m. and 5 p.m. (ET). Persons planning to attend this meeting are urged to contact the above named individual at least two working days prior to the meeting to be advised of any potential changes to the agenda. PO 00000 Frm 00085 Fmt 4703 Sfmt 4703 63033 Dated: October 14, 2008. Cayetano Santos, Branch Chief. [FR Doc. E8–25141 Filed 10–21–08; 8:45 am] BILLING CODE 7590–01–P NUCLEAR REGULATORY COMMISSION [Docket No. 70–7001, 70–7002] Notice of Renewal of Certificates of Compliance GDP–1 and GDP–2 for the U.S. Enrichment Corporation, Paducah and Portsmouth Gaseous Diffusion Plants, Paducah, KY and Portsmouth, OH Notice and issuance of a Director’s Decision renewing the Certificates of Compliance for the United States Enrichment Corporation (USEC) allowing continued operation of the gaseous diffusion plants (GDPs), at Paducah, KY, and Portsmouth, OH. ACTION: FOR FURTHER INFORMATION CONTACT: Michael Raddatz, Enrichment and Conversion Branch, Division of Fuel Cycle Safety and Safeguards, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001. Telephone: (301) 492–3108; Fax: (301) 492–3363; or by e-mail: Michael.Raddatz@nrc.gov. SUPPLEMENTARY INFORMATION: I. Introduction The U.S. Nuclear Regulatory Commission (NRC) is hereby issuing a director’s decision authorizing the renewal of the certificates of compliance for the two GDPs located near Paducah, KY, and Portsmouth, OH, for the USEC, allowing continued operation of these plants. The renewal of these certificates for the GDPs covers a 5-year period. USEC submitted individual renewal requests for both the Paducah and Portsmouth GDPs on April 10, 2008, pursuant to Title 10 of the Code of Federal Regulations (10 CFR), Section 76.31. Pursuant to 10 CFR 76.53, the NRC consulted with and requested written comments on the renewal application from the U.S. Environmental Protection Agency (EPA) and the Department of Energy (DOE). EPA responded in a letter dated September 15, 2008, (ML082840196) stating that it had thoroughly reviewed the USEC application to ensure that USEC had provided an accurate environmental compliance overview. The EPA found that both the local and regional EPA regulators had adequately inspected the E:\FR\FM\22OCN1.SGM 22OCN1

Agencies

[Federal Register Volume 73, Number 205 (Wednesday, October 22, 2008)]
[Notices]
[Pages 63029-63033]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-25293]


-----------------------------------------------------------------------

NUCLEAR REGULATORY COMMISSION

[Docket No. 63-001; CLI-08-25]


In the Matter of U.S. Department of Energy (High Level Waste 
Repository); Notice of Hearing and Opportunity To Petition for Leave To 
Intervene on an Application for Authority To Construct a Geologic 
Repository at a Geologic Repository Operations Area at Yucca Mountain

    COMMISSIONERS: Dale E. Klein, Chairman; Gregory B. Jaczko, Peter B. 
Lyons, Kristine L. Svinicki.

I. Notice of Hearing

    By letter dated June 3, 2008, the Department of Energy (DOE) 
submitted an application seeking authorization to construct a geologic 
repository at a geologic repository operations area at Yucca Mountain 
in Nye County, Nevada. The NRC published a notice of receipt and 
availability of this application in the Federal Register (73 FR 34348, 
corrected in 73 FR 40883 (June 17, 2008)). Notice is hereby given that 
a hearing on the application will be held at a time and place to be set 
in the future by the Nuclear Regulatory Commission (the Commission) or 
an Atomic Safety and Licensing Board (Board).
    The hearing will consider the application for construction 
authorization filed by DOE pursuant to Section 114 of the Nuclear Waste 
Policy Act of 1982 (NWPA), 42 U.S.C. 10134, and pursuant to 10 CFR 
Parts 2 and 63. The NRC Staff accepted the DOE application for 
docketing on September 8, 2008 (73 FR 53284 (September 15, 2008)), and 
the docket number established for this application is 63-001.
    The NRC Staff determined that it is practicable to adopt, with 
further supplementation, the Environmental Impact Statement (EIS) and 
supplements prepared by DOE. The Staff concluded that neither the 2002 
Final Environmental Impact Statement (FEIS) nor the 2008 Final 
Supplemental Environmental Impact Statement (Repository Supplemental 
EIS) adequately address all the impacts on groundwater, or from surface 
discharges of groundwater, from the proposed action. The Staff 
therefore found that additional supplementation is needed to ensure 
that the 2002 FEIS and 2008 Repository Supplemental EIS are adequate. 
The basis for the Staff's position is presented in the ``U.S. Nuclear 
Regulatory Commission Staff's Adoption Determination Report for the 
U.S. Department of Energy's Environmental Impact Statements for the 
Proposed Geologic Repository at Yucca Mountain,'' which is available in 
the Agencywide Documents Access and Management System (ADAMS) online 
document system at http://www.nrc.gov/reading-rm/adams/web-based.html, 
at accession number ML082420342.
    The NRC Staff will complete a detailed technical review of the DOE 
application, and will document its findings in a safety evaluation 
report. If the Commission finds that the DOE application meets the 
applicable standards of the Atomic Energy Act of 1954, as amended 
(AEA), the NWPA, and the Commission's regulations, then the Commission 
will issue a construction authorization, in the form and containing 
such conditions and limitations, if any, as the Commission finds 
appropriate and necessary.

II. Opportunity To Petition for Leave To Intervene

    A hearing on DOE's construction authorization application will be 
held in the public interest pursuant to 10 CFR 2.101(e)(8). The hearing 
will be governed by the rules of procedure in 10 CFR Part 2, Subpart C, 
``Rules of General Applicability: Hearing Requests, Petitions to 
Intervene, Availability of Documents, Selection of Specific Hearing 
Procedures, Presiding Officer Powers, and General Hearing Management 
for NRC Adjudicatory Hearings''; Subpart J, ``Procedures Applicable to 
Proceedings for the Issuance of Licenses for the Receipt of High-Level 
Radioactive Waste at a Geologic Repository''; and Subpart G, ``Rules 
for Formal Adjudications.'' The matters of fact and law to be 
considered are whether the application satisfies the applicable safety, 
security, and technical standards of the AEA and NWPA and the NRC's 
standards in 10 CFR Part 63 for a construction authorization for a 
high-level waste geologic repository, and also whether the applicable 
requirements of the National Environmental Policy Act (NEPA) and NRC's 
NEPA regulations, 10 CFR Part 51, have been met.
    Any person whose interest may be affected by this proceeding and 
who desires to participate as a party must file a written petition for 
leave to intervene in accordance with the requirements in 10 CFR 2.309, 
including contentions that satisfy the admissibility standards

[[Page 63030]]

in Sec.  2.309. Petitioners seeking to intervene as parties must also 
comply with the procedural case management requirements set forth in 
the Advisory Pre-License Application Presiding Officer (PAPO) Board's 
Memorandum and Order, LBP-08-10 (Case Management Order Concerning 
Petitions to Intervene, Contentions, Responses, Replies, Standing 
Arguments, and Referencing or Attaching Supporting Materials), dated 
June 20, 2008, available at ADAMS accession number ML081720154, and the 
Advisory PAPO Board's Order (Regarding Contention Formatting and Tables 
of Contents), dated September 29, 2008, available at ADAMS accession 
number ML082730764. In addition, as outlined further below, the 
regulations in 10 CFR Part 2, Subpart J require electronic production, 
filing and service of all documents in this proceeding.
    In ruling on a petition to intervene in this proceeding, the 
presiding officer shall consider any failure of the petitioner to 
participate as a potential party in the pre-license application phase 
under 10 CFR Part 2, Subpart J, in addition to the factors on standing 
to intervene outlined in 10 CFR 2.309(d).
    A petition for leave to intervene must be filed no later than 60 
days after the date of publication of this notice in the Federal 
Register. A non-timely petition or contention will not be entertained 
unless the Commission, an Atomic Safety and Licensing Board, or a 
presiding officer designated to rule on the petition determines that 
the late petition or contention meets the late-filed requirements of 10 
CFR 2.309(c)(1)(i)-(viii).
    Certain hearing schedule milestones in Appendix D to 10 CFR Part 2, 
as well as the 30-day hearing petition and contention-filing deadlines 
set forth in 10 CFR 2.309(b)(2) and 51.109(a)(2) are superseded by this 
notice. A revised hearing schedule with new milestones for actions 
through the First Prehearing Conference Order appears in Section VI of 
this notice.
    Those permitted to intervene become parties to the proceeding, 
subject to any limitations in the order granting leave to intervene, 
and will have the opportunity to participate fully in the conduct of 
the hearing.
    The regulations in 10 CFR Part 2, Subpart J require electronic 
document production (via the Licensing Support Network) and electronic 
filing and service of adjudicatory documents via the Electronic 
Information Exchange (EIE). This requirement applies to all documents 
filed in the proceeding, including a petition for leave to intervene, 
and any motion or other document filed in the proceeding prior to the 
submission of a petition to intervene. Pursuant to 10 CFR 2.1012(b)(1), 
a petitioner, including a potential party given access to the Licensing 
Support Network, may not be granted party status under 10 CFR 2.309, or 
status as an interested governmental participant under 10 CFR 2.315, if 
the petitioner cannot demonstrate substantial and timely compliance 
with the requirements in 10 CFR 2.1003 at the time of the request for 
participation in the high-level waste proceeding.\1\ In addition, a 
petitioner will not be found to be in substantial and timely compliance 
unless the petitioner complies with all orders of the Pre-License 
Application Presiding Officer (PAPO) regarding electronic availability 
of documents. PAPO orders are available on the NRC's high-level waste 
electronic hearing docket at: http://hlwehd.nrc.gov/Public_HLW-EHD/
home.asp, under HLW-EHD, folder titled PAPO--HLW, subfolder titled 
Orders--PAPO.
---------------------------------------------------------------------------

    \1\ A person denied party or interested governmental participant 
status under 10 CFR 2.1012(b)(1) may request such status upon a 
showing of subsequent compliance with the requirements of 10 CFR 
2.1003. The subsequent admission of such a party or interested 
governmental participant shall be conditioned on accepting the 
status of the proceeding at the time of admission.
---------------------------------------------------------------------------

    A petition for leave to intervene, and all filings in the 
adjudicatory proceeding, must be filed electronically in accordance 
with 10 CFR 2.1013(c)(1). At least 30 days prior to the filing deadline 
for a petition to intervene, the petitioner must contact the Office of 
the Secretary (SECY) by e-mail at: HEARINGDOCKET@NRC.GOV or by calling 
(301) 415-1677, to request (1) a digital ID certificate, which allows 
the participant (or its counsel or representative) to digitally sign 
documents and access the E-Submittal server for any proceeding in which 
it is participating; and/or (2) creation of an electronic docket for 
the proceeding (even in instances in which the petitioner, or its 
counsel or representative, already holds an NRC-issued digital 
certificate). Each petitioner will need to download the Workplace Forms 
ViewerTM to access the EIE, a component of the E-Filing 
system. The Workplace Forms ViewerTM is free and is 
available at http://www.nrc.gov/site-help/e-submittals/install-
viewer.html. Information about applying for a digital ID certificate is 
available on the NRC's public Web site at http://www.nrc.gov/site-help/
e-submittals/apply-certificates.html.
    Once a petitioner has obtained a digital ID certificate, has had a 
docket created, and has downloaded the EIE viewer, the petitioner can 
then submit a petition for leave to intervene. Submissions should be in 
Portable Document Format (PDF) in accordance with NRC guidance 
available on the NRC public Web site at http://www.nrc.gov/site-help/e-
submittals.html. Guidance for Electronic Submissions to the NRC is a 
consolidated guidance document that sets forth the technical standards 
for electronic transmission and formatting electronic documents, and 
provides instructions on how to obtain and use the agency-provided 
digital ID certificate. A person who holds a current digital ID 
certificate for use in the proceedings before the PAPO or the Advisory 
PAPO need not obtain a new certificate. That certificate will remain 
valid for this proceeding.
    Section 2.1013(c) defines service as completed when the filer/
sender receives electronic acknowledgement (``delivery receipt'') that 
the electronic submission has been placed in the recipient's electronic 
mailbox. To be timely, an electronic filing must be submitted to the 
EIE system no later than 11:59 p.m. Eastern Time on the due date.
    Upon receipt of a transmission, the E-Filing system time-stamps the 
document and sends the submitter an e-mail notice confirming receipt of 
the document. The EIE system also distributes an e-mail notice that 
provides access to the document to the NRC Office of 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 
applicant and any other participant (or their counsel or 
representative) must apply for and receive a digital ID certificate 
before a petition to intervene is filed so that they can obtain access 
to the document via the E-Filing system.
    A person filing electronically may seek assistance through the 
``Contact Us'' link located under the heading ``Additional 
Information'' on the NRC Web site at http://www.nrc.gov/site-help/e-
submittals.html or by calling the NRC technical help line, which is 
available between 8:30 a.m. and 4:15 p.m., Eastern Time, Monday through 
Friday. The help line number is (800) 397-4209 or locally (301) 415-
4737.
    Documents submitted in adjudicatory proceedings will appear in the 
NRC's high-level waste electronic hearing docket at http://
hlwehd.nrc.gov/Public_HLW-EHD/home.asp , unless

[[Page 63031]]

excluded pursuant to an order of the Commission, an Atomic Safety and 
Licensing Board, or a presiding officer. Participants are requested not 
to include personal privacy information, such as social security 
numbers, home addresses, or home phone numbers in the filing. With 
respect to copyrighted works, except for limited excerpts that serve 
the purpose of the adjudicatory filing and would constitute a Fair Use 
application, participants are requested not to include copyrighted 
materials in their submission.
    Documents may be examined, and/or copied for a fee, at the NRC's 
Public Document Room (PDR), located at One White Flint North, Public 
File Area 01 F21, 11555 Rockville Pike (first floor), Rockville, 
Maryland, and will be accessible electronically through the ADAMS 
Public Electronic Reading Room link at the NRC Web site http://
www.nrc.gov/reading-rm/adams.html. The ADAMS accession number for the 
ADAMS package containing the DOE application is ML081560400. The ADAMS 
accession number for the ADAMS package containing DOE's Final 
Environmental Impact Statement is ML032690321, and the accession number 
for the ADAMS package containing DOE's Final Supplemental Environmental 
Impact Statement is ML081750191. The ADAMS accession number for the 
ADAMS package containing DOE's Final Rail Corridor Supplemental EIS and 
Rail Alignment EIS is ML082460227. The application is also available at 
http://www.nrc.gov/waste/hlw-disposal/yucca-lic-app.html. Persons who 
do not have access to ADAMS or who encounter problems in accessing 
documents located in ADAMS should contact the NRC Public Document Room 
(PDR) Reference staff by telephone at 1-800-397-4209, or 301-415-4737, 
or by e-mail to pdr@nrc.gov.

III. Additional Matters Pertaining to the Hearing and Intervention 
Requests

A. Standing as of Right

    Pursuant to 10 CFR 2.309(d)(2)(iii), the Commission shall permit 
intervention by the State and local governmental body (county, 
municipality or other subdivision) in which the geologic repository 
operations area is located, and by any affected Federally-recognized 
Indian Tribe, as defined in 10 CFR Part 63, if the contention 
requirements in 10 CFR 2.309(f) are satisfied with respect to at least 
one contention. Section 2.309(d)(2) specifies that such State, affected 
Federally-recognized Indian Tribe, and local governmental body need not 
address the standing requirements in 10 CFR 2.309(d).
    In LBP-08-10, the Advisory PAPO Board requested that the Commission 
clarify whether an ``affected unit of local government'' (AULG), as 
defined in section 2 of the NWPA, as amended (42 U.S.C. 10101), also 
need not address the standing requirements of section 2.309(d). Any 
AULG seeking party status shall be considered a party to this 
proceeding, provided that it files at least one admissible contention 
in accordance with 10 CFR 2.309. An AULG need not address the standing 
requirements under that section.

B. Environmental Contentions

    In addition to meeting NRC's regular contention admissibility 
requirements in 10 CFR 2.309(f), environmental contentions addressing 
any DOE environmental impact statement or supplement must also conform 
to the requirements and address the applicable factors outlined in 10 
CFR 51.109 governing NRC's adoption of DOE's environmental impact 
statements. The requirements of section 51.109 should be applied 
consistent with Nuclear Energy Institute, Inc. v. EPA, 373 F.3d 1251, 
1313-14 (D.C. Cir. 2004), a court decision discussing section 51.109, 
and consistent with the Commission's denial of the State of Nevada's 
petition to amend section 51.109 (73 FR 5762; January 31, 2008), and 
the Office of the General Counsel's subsequent letter clarifying the 
Commission's denial (Letter from Bradley W. Jones, Assistant General 
Counsel to Martin G. Malsch, dated March 20, 2008, ADAMS accession 
number ML080810175). Under 10 CFR 51.109(c), the presiding officer 
should treat as a cognizable ``new consideration'' an attack on the 
Yucca Mountain environmental impact statements based on significant and 
substantial information that, if true, would render the statements 
inadequate. Under 10 CFR 51.109(a)(2), a presiding officer considering 
environmental contentions should apply NRC ``reopening'' procedures and 
standards in 10 CFR 2.326 ``to the extent possible.''

C. Hearing Procedures

    The construction authorization hearing will be conducted by one or 
more presiding officers (licensing boards) that will be designated by 
the Chief Judge of the Atomic Safety and Licensing Board Panel. The 
Commission anticipates and authorizes the establishment of multiple 
licensing boards throughout the proceeding. Notice as to the membership 
of the board(s) will be published at a later date.
    In 1991, the Commission suggested that it would use the notice of 
hearing for a high-level waste (HLW) proceeding to announce detailed 
case management procedures (56 FR 7787, 7793-94 (February 26, 1991)). 
In the intervening years, however, the Atomic Safety and Licensing 
Board Panel has engaged in extensive case management planning for this 
proceeding. The Commission therefore believes that the presiding 
officer(s) in this proceeding will be in the best position to establish 
and efficiently resolve case management issues, some of which the 
Commission-authorized Advisory PAPO Board resolved in LBP-08-10.

D. Scope of the Hearing

    In accordance with 10 CFR 2.1027, in any initial decision on the 
application for construction authorization, the presiding officer shall 
make findings of fact and conclusions of law on, and otherwise give 
consideration to, only material issues put into controversy by the 
parties and determined to be litigable in the proceeding. The 
Commission has determined that the scope of the adjudicatory proceeding 
on safety, security, or technical issues is limited to litigable 
contested issues. See State of Nevada; Denial of Petition for 
Rulemaking, Docket No. PRM-2-14, available at ADAMS accession number 
ML082900618. The presiding officer has no authority or duty to resolve 
uncontested issues in those areas. See 10 CFR 2.1023(c)(2) and 10 CFR 
2.1027.
    Notwithstanding the provisions in 2.1023(c)(2) and 10 CFR 2.1027, 
the presiding officer shall make the environmental findings required by 
10 CFR 51.109(e), even on uncontested issues, ``to the extent it is not 
practicable to adopt the environmental impact statement prepared by the 
Secretary of Energy.''

E. Participation by a Non-Party

    A person who is not a party may be permitted to make a limited 
appearance statement by making an oral or written statement of his or 
her position on the issues at any session of the hearing or any pre-
hearing conference within the limits and conditions fixed by the 
presiding officer, but may not otherwise participate in the proceeding.

IV. Access to Non-public information

    Those petitioners who seek access to non-public information must 
follow the access requirements contained in the PAPO Board's Third Case 
Management Order (August 30, 2007), available at ADAMS accession number

[[Page 63032]]

ML072420327. This and other case management orders issued by the PAPO 
Board govern protection of various categories of protected and 
privileged information. The Board's case management orders are 
available on the high-level waste electronic hearing docket, Docket No. 
PAPO-00, at http://hlwehd.nrc.gov/Public_HLW-EHD/home.asp , under HLW-
EHD, folder titled PAPO--HLW, subfolder titled Orders--PAPO.

V. Motions

    To avoid unnecessary disputes and filings, a party who files a 
motion must certify, pursuant to 10 CFR 2.323, that he or she has made 
a reasonable effort to consult with counsel for the applicant and 
counsel for the NRC staff, as well as other interested counsel or 
litigants, in an effort to resolve the matter in advance of filing the 
motion. Motions must also meet all other section 2.323 requirements.

VI. Revised Hearing Schedule Milestones

    In CLI-08-18 (August 13, 2008), available at ADAMS accession number 
ML082261241, the Commission granted the State of Nevada, as well as any 
other petitioner, an additional thirty (30) days in which to file a 
petition to intervene, or a petition for status as an interested 
government participant, in this proceeding. In addition, the Commission 
proposed further modifications to the schedule codified in 10 CFR Part 
2, Appendix D.
    The Commission invited any party or potential party participating 
in the matters before the PAPO Board to provide comments on certain 
additional proposed extensions of time. The Commission also sought the 
views of the Atomic Safety and Licensing Board Panel on the 
reasonableness of current and proposed time frames. The Commission has 
considered the comments received, and has determined that the revised 
schedule below will replace certain hearing milestones set forth in 
Appendix D to 10 CFR Part 2.
    The Commission hereby doubles the time permitted to file answers 
and replies, pursuant to 10 CFR 2.309(h)(1) and (2), respectively, to 
fifty (50) and fourteen (14) days, respectively. The Commission also 
extends the period for the First Prehearing Conference from eight (8) 
to sixteen (16) days after the deadline for filing replies, and extends 
the period for issuance of the First Prehearing Conference Order from 
thirty (30) to sixty (60) days after the First Prehearing Conference. 
The revised Appendix D schedule, reflected in the table below, replaces 
only the milestones up to, and including, the First Prehearing 
Conference Order. The presiding officer retains authority to grant 
extensions of time of no more than fifteen days, and the Commission 
retains authority to grant extensions of longer than fifteen days, but 
in either case the litigant seeking the extension must follow the 
requirements of 10 CFR 2.1026.

                  Partially Revised Appendix D Schedule
------------------------------------------------------------------------
                  Day                                 Action
------------------------------------------------------------------------
0......................................  Federal Register Notice of
                                          Hearing.
60.....................................  Petition to intervene/request
                                          for hearing, w/contentions.
110....................................  Answers to intervention and
                                          interested government
                                          participant Petitions.
124....................................  Petitioner's response to
                                          answers.
140....................................  First Prehearing Conference.
200....................................  First Prehearing Conference
                                          Order identifying participants
                                          in proceeding, admitted
                                          contentions, and setting
                                          discovery and other schedules.
------------------------------------------------------------------------

    The regulatory requirements governing the balance of the Appendix D 
schedule remain unchanged.

VII. September 9, 2008, Petition

    On September 9, 2008, the State of Nevada submitted to the 
Commission a ``petition'' directed to the content of this hearing 
notice.\2\ In this petition, Nevada argues that the Commission cannot 
issue a notice of hearing unless it first resolves ``at least three 
important legal and procedural issues.'' \3\
---------------------------------------------------------------------------

    \2\ Petition to Publish a Fair and Reasonable Notice of Hearing 
on DOE's Yucca Mountain Application (Sept. 9, 2008), available at 
ADAMS accession number ML082550289 (September 9 Petition). The 
procedural identity of Nevada's ``petition'' is not obvious. The 
Commission addresses the issues Nevada raises as part of this notice 
of hearing solely as a matter of expedience since they touch on 
topics the Commission already addresses independently.
    Both DOE and the NRC Staff responded to the September 9 
Petition. See U.S. Department of Energy Response to State of Nevada 
``Petition to Publish a Fair and Reasonable Notice of Hearing on 
DOE's Yucca Mountain Application'' (Sept. 19, 2008); NRC Staff's 
Response to the State of Nevada's Petition to Publish a Fair and 
Reasonable Notice of Hearing on DOE's Yucca Mountain Application 
(Sept. 19, 2008).
    \3\ September 9 Petition at 3.
---------------------------------------------------------------------------

    Nevada's first issue, now partially mooted, is the lack of final 
Environmental Protection Agency (EPA) standards and implementing NRC 
rules for the post-10,000 year period. The EPA has now established 
post-10,000 year standards, and the Staff is developing implementing 
regulations.\4\ Nevada argued that potential parties cannot draft 
contentions based upon standards that have not been finalized. As a 
possible remedy, Nevada proposed that today's notice of hearing include 
a delay--essentially a bifurcation of contention-filing deadlines--with 
respect to all issues related to the EPA standards and the NRC's 
implementing rules until some date to be determined after the standards 
and rules are issued. Nevada argued alternatively that this delay could 
be avoided if the Commission declined to be bound by its Staff's 
decision to docket the application.
---------------------------------------------------------------------------

    \4\ Final Rule, Public Health and Environmental Radiation 
Protection Standards for Yucca Mountain, Nevada 73 FR 61,256 
(October 15, 2008).
---------------------------------------------------------------------------

    The Commission recognizes Nevada's concern but does not believe 
Nevada's extraordinary remedies are necessary, especially since the EPA 
has now issued the relevant standards, and the NRC's regulations are in 
preparation. Under the NRC's ordinary practice, Nevada and other 
hearing petitioners are free to file contentions arguing that the 
Commission may not authorize construction in the absence of 
implementing NRC rules. And they are also free to file contentions 
maintaining that DOE's application does not meet EPA's standards. Such 
contentions would require no change in the contention-filing schedule 
set out in CLI-08-18. Nevada or other hearing petitioners may amend 
their ``EPA standards''-related contentions later, after the NRC's 
implementing rules are issued, if the new NRC rules establish fresh 
grounds for contentions. Under the unusual circumstances of this case, 
where controlling agency rules have been delayed, and to ensure that no 
one is prejudiced, any contentions so amended--on EPA standards-related 
issues only--will be deemed timely for admissibility purposes if filed 
within sixty days after the Federal Register publication of the NRC 
rules implementing the new EPA standards.\5\
---------------------------------------------------------------------------

    \5\ NRC rules ordinarily call on licensing boards to balance 
several factors in deciding whether to allow late-filed (or amended) 
contentions. See 10 CFR 2.309(c)(i)-(viii). In the case of the yet-
to-issue NRC rules, however, the Commission is dispensing in advance 
with all ``late-filed'' factors except the ``good cause'' factor. It 
is obvious even now that promptly-filed and well-pled contentions 
based on new, previously unavailable NRC rules--rules that will 
govern important aspects of NRC's safety review--must be admitted 
for hearing. There plainly would be ``good cause'' for filing such 
contentions late, and no conceivable justification for rejecting 
them at the threshold.
---------------------------------------------------------------------------

    The second issue Nevada raises in its September 9 Petition concerns 
a petition for rulemaking it filed regarding the specification of 
issues for the mandatory hearing portion of this proceeding.\6\

[[Page 63033]]

That petition has now been ruled on, and the Commission's rulemaking 
decision is reflected in the discussion of the scope of the hearing 
addressed in Section III.D, above.\7\
---------------------------------------------------------------------------

    \6\ Petition by the State of Nevada for Rulemaking to Specify 
Issues for the Yucca Mountain Mandatory Hearing (June 19, 2007).
    \7\ See State of Nevada; Denial of Petition for Rulemaking, 
Docket No. PRM-2-14, available at ADAMS accession number 
ML082900618.
---------------------------------------------------------------------------

    Finally, the third issue Nevada raises in its September 9 Petition 
concerns the status of security clearances and access to classified 
information in the Yucca Mountain construction authorization 
application. Nevada argues that its representatives have not been 
informed of decisions on their security clearances and on access to 
classified information, ``notwithstanding timely applications,'' so no 
contentions based on classified information can be prepared.\8\ To 
remedy this, Nevada again asks for a bifurcation of contention-filing 
deadlines.
---------------------------------------------------------------------------

    \8\ September 9 Petition at 6.
---------------------------------------------------------------------------

    It is the Commission's understanding that, as of the end of July, 
one of Nevada's security clearance applications was complete and was 
being processed, another application was incomplete, and two 
applications had been withdrawn.\9\ From this, the Commission concludes 
that the timeliness of Nevada's security clearance applications is 
factually ambiguous. Moreover, it is not immediately clear that the 
perceived problem could not be remedied by the provision of redacted 
versions of classified documents that could provide a basis for the 
formulation of contentions before the security clearance application 
reviews are completed. The Commission directs the PAPO Board to resolve 
both of these questions.
---------------------------------------------------------------------------

    \9\ See Letter from Aby Mohseni, Deputy Director, Licensing and 
Inspection Directorate, Division of High-Level Waste Repository 
Safety, Office of Nuclear Material Safety and Safeguards to Robert 
R. Loux, Executive Director, Agency for Nuclear Projects, Office of 
the Governor, State of Nevada (July 31, 2008), available at ADAMS 
accession number ML081910097.
---------------------------------------------------------------------------

    It is so ordered.

    Dated at Rockville, Maryland, this 17th day of October, 2008.

    For the Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
 [FR Doc. E8-25293 Filed 10-21-08; 8:45 am]
BILLING CODE 7590-01-P