Notice of Applications and Amendments to Facility Operating Licenses Involving Proposed No Significant Hazards Considerations and Containing Sensitive Unclassified Non-Safeguards Information or Safeguards Information and Order Imposing Procedures for Access to Sensitive Unclassified Non-Safeguards Information or Safeguards Information, 66944-66949 [E8-26716]
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[Federal Register Volume 73, Number 219 (Wednesday, November 12, 2008)] [Notices] [Pages 66944-66949] From the Federal Register Online via the Government Printing Office [www.gpo.gov] [FR Doc No: E8-26716] [[Page 66944]] ======================================================================= ----------------------------------------------------------------------- NUCLEAR REGULATORY COMMISSION Notice of Applications and Amendments to Facility Operating Licenses Involving Proposed No Significant Hazards Considerations and Containing Sensitive Unclassified Non-Safeguards Information or Safeguards Information and Order Imposing Procedures for Access to Sensitive Unclassified Non-Safeguards Information or Safeguards Information I. Background Pursuant to section 189a.(2) of the Atomic Energy Act of 1954, as amended (the Act), the U.S. Nuclear Regulatory Commission (the Commission or NRC staff) is publishing this notice. The Act requires the Commission publish notice of any amendments issued, or proposed to be issued and grants the Commission the authority to issue and make immediately effective any amendment to an operating license upon a determination by the Commission that such amendment involves no significant hazards consideration, notwithstanding the pendency before the Commission of a request for a hearing from any person. This notice includes notices of amendments containing sensitive unclassified non-safeguards information (SUNSI) or safeguards information (SGI). Notice of Consideration of Issuance of Amendments to Facility Operating Licenses, Proposed No Significant Hazards Consideration Determination, and Opportunity for a Hearing The Commission has made a proposed determination that the following amendment requests involve no significant hazards consideration. Under the Commission's regulations in 10 CFR 50.92, this means that operation of the facility in accordance with the proposed amendment would not (1) involve a significant increase in the probability or consequences of an accident previously evaluated; or (2) create the possibility of a new or different kind of accident from any accident previously evaluated; or (3) involve a significant reduction in a margin of safety. The basis for this proposed determination for each amendment request is shown below. The Commission is seeking public comments on this proposed determination. Any comments received within 30 days after the date of publication of this notice will be considered in making any final determination. Normally, the Commission will not issue the amendment until the expiration of 60 days after the date of publication of this notice. The Commission may issue the license amendment before expiration of the 60- day period provided that its final determination is that the amendment involves no significant hazards consideration. In addition, the Commission may issue the amendment prior to the expiration of the 30- day comment period should circumstances change during the 30-day comment period such that failure to act in a timely way would result, for example, in derating or shutdown of the facility. Should the Commission take action prior to the expiration of either the comment period or the notice period, it will publish in the Federal Register a notice of issuance. Should the Commission make a final No Significant Hazards Consideration Determination, any hearing will take place after issuance. The Commission expects that the need to take this action will occur very infrequently. Written comments may be submitted by mail to the Chief, Rulemaking, Directives and Editing Branch, Division of Administrative Services, Office of Administration, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, and should cite the publication date and page number of this Federal Register notice. Written comments may also be delivered to Room 6D44, Two White Flint North, 11545 Rockville Pike, Rockville, Maryland, from 7:30 a.m. to 4:15 p.m. Federal workdays. Copies of written comments received may be examined at the Commission's Public Document Room (PDR), located at One White Flint North, Public File Area O1F21, 11555 Rockville Pike (first floor), Rockville, Maryland. The filing of requests for a hearing and petitions for leave to intervene is discussed below. Within 60 days after the date of publication of this notice, person(s) may file a request for a hearing with respect to issuance of the amendment to the subject facility operating license, and any person whose interest may be affected by this proceeding and who wishes to participate as a party in the proceeding must file a written request via electronic submission through the NRC E-Filing system for a hearing and a petition for leave to intervene. Requests for a hearing and a petition for leave to intervene shall be filed in accordance with the Commission's ``Rules of Practice for Domestic Licensing Proceedings'' in 10 CFR Part 2. Interested person(s) should consult a current copy of 10 CFR 2.309, which is available at the Commission's PDR, located at One White Flint North, Public File Area 01F21, 11555 Rockville Pike (first floor), Rockville, Maryland, or at https://www.nrc.gov/reading- rm/doc-collections/cfr/part002/part002-0309.html. Publicly available records will be accessible from the Agencywide Documents Access and Management System's (ADAMS) Public Electronic Reading Room on the Internet at the NRC Web site, https://www.nrc.gov/reading-rm.html. If a request for a hearing or petition for leave to intervene is filed within 60 days, the Commission or a presiding officer designated by the Commission or by the Chief Administrative Judge of the Atomic Safety and Licensing Board Panel, will rule on the request and/or petition; and the Secretary or the Chief Administrative Judge of the Atomic Safety and Licensing Board will issue a notice of a hearing or an appropriate order. As required by 10 CFR 2.309, a petition for leave to intervene shall set forth with particularity the interest of the petitioner in the proceeding, and how that interest may be affected by the results of the proceeding. The petition should specifically explain the reasons why intervention should be permitted with particular reference to the following general requirements: (1) The name, address, and telephone number of the requestor or petitioner; (2) the nature of the requestor's/petitioner's right under the Act to be made a party to the proceeding; (3) the nature and extent of the requestor's/petitioner's property, financial, or other interest in the proceeding; and (4) the possible effect of any decision or order which may be entered in the proceeding on the requestor's/petitioner's interest. The petition must also set forth the specific contentions which the petitioner/requestor seeks to have litigated at the proceeding. Each contention must consist of a specific statement of the issue of law or fact to be raised or controverted. In addition, the petitioner/requestor shall provide a brief explanation of the bases for the contention and a concise statement of the alleged facts or expert opinion which support the contention and on which the petitioner/ requestor intends to rely in proving the contention at the hearing. The petitioner/requestor must also provide references to those specific sources and documents of which the petitioner is aware and on which the petitioner/requestor intends to rely to establish those facts or expert opinion. The petition must include sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact. Contentions shall be limited to matters within the scope of the [[Page 66945]] amendment under consideration. The contention must be one which, if proven, would entitle the petitioner/requestor to relief. A petitioner/ requestor who fails to satisfy these requirements with respect to at least one contention will not be permitted to participate as a party. Those permitted to intervene become parties to the proceeding, subject to any limitations in the order granting leave to intervene, and have the opportunity to participate fully in the conduct of the hearing. If a hearing is requested, and the Commission has not made a final determination on the issue of no significant hazards consideration, the Commission will make a final determination on the issue of no significant hazards consideration. The final determination will serve to decide when the hearing is held. If the final determination is that the amendment request involves no significant hazards consideration, the Commission may issue the amendment and make it immediately effective, notwithstanding the request for a hearing. Any hearing held would take place after issuance of the amendment. If the final determination is that the amendment request involves a significant hazards consideration, any hearing held would take place before the issuance of any amendment. All documents filed in NRC adjudicatory proceedings, including a request for hearing, a petition for leave to intervene, any motion or other document filed in the proceeding prior to the submission of a request for hearing or petition to intervene, and documents filed by interested governmental entities participating under 10 CFR 2.315(c), must be filed in accordance with the NRC E-Filing rule, which the NRC promulgated on August 28, 2007 (72 FR 49139). The E-Filing process requires participants to submit and serve all adjudicatory documents over the internet, or in some cases to mail copies on electronic storage media. Participants may not submit paper copies of their filings unless they seek a waiver in accordance with the procedures described below. To comply with the procedural requirements of E-Filing, at least ten (10) days prior to the filing deadline, the petitioner/requestor must contact the Office of the Secretary by e-mail at hearing.docket@nrc.gov, or by calling (301) 415-1677, to request (1) a digital ID certificate, which allows the participant (or its counsel or representative) to digitally sign documents and access the E-Submittal server for any proceeding in which it is participating; and/or (2) creation of an electronic docket for the proceeding (even in instances in which the petitioner/requestor (or its counsel or representative) already holds an NRC-issued digital ID certificate). Each petitioner/ requestor will need to download the Workplace Forms ViewerTM to access the Electronic Information Exchange (EIE), a component of the E-Filing system. The Workplace Forms ViewerTM is free and is available at https://www.nrc.gov/site-help/e-submittals/install- viewer.html. Information about applying for a digital ID certificate is available on NRC's public Web site at https://www.nrc.gov/site-help/e- submittals/apply-certificates.html. Once a petitioner/requestor has obtained a digital ID certificate, had a docket created, and downloaded the EIE viewer, it can then submit a request for hearing or petition for leave to intervene. Submissions should be in Portable Document Format (PDF) in accordance with NRC guidance available on the NRC public Web site at https://www.nrc.gov/ site-help/e-submittals.html. A filing is considered complete at the time the filer submits its documents through EIE. To be timely, an electronic filing must be submitted to the EIE system no later than 11:59 p.m. Eastern Time on the due date. Upon receipt of a transmission, the E-Filing system time-stamps the document and sends the submitter an e-mail notice confirming receipt of the document. The EIE system also distributes an e-mail notice that provides access to the document to the NRC Office of the General Counsel and any others who have advised the Office of the Secretary that they wish to participate in the proceeding, so that the filer need not serve the documents on those participants separately. Therefore, applicants and other participants (or their counsel or representative) must apply for and receive a digital ID certificate before a hearing request/petition to intervene is filed so that they can obtain access to the document via the E-Filing system. A person filing electronically may seek assistance through the ``Contact Us'' link located on the NRC Web site at https://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. Participants who believe that they have a good cause for not submitting documents electronically must file a motion, in accordance with 10 CFR 2.302(g), with their initial paper filing requesting authorization to continue to submit documents in paper format. Such filings must be submitted by: (1) First class mail addressed to the Office of the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemaking and Adjudications Staff; or (2) courier, express mail, or expedited delivery service to the Office of the Secretary, Sixteenth Floor, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852, Attention: Rulemaking and Adjudications Staff. Participants filing a document in this manner are responsible for serving the document on all other participants. Filing is considered complete by first-class mail as of the time of deposit in the mail, or by courier, express mail, or expedited delivery service upon depositing the document with the provider of the service. Non-timely requests and/or petitions and contentions will not be entertained absent a determination by the Commission or the presiding officer of the Atomic Safety and Licensing Board that the petition, request and/or the contentions should be granted based on a balancing of the factors specified in 10 CFR 2.309(c)(1)(i)-(viii). Documents submitted in adjudicatory proceedings will appear in NRC's electronic hearing docket which is available to the public at https://ehd.nrc.gov/ehd_proceeding/home.asp, unless excluded pursuant to an order of the Commission, an Atomic Safety and Licensing Board, or a Presiding Officer. Participants are requested not to include personal privacy information, such as social security numbers, home addresses, or home phone numbers in their filings. With respect to copyrighted works, except for limited excerpts that serve the purpose of the adjudicatory filings and would constitute a Fair Use application, participants are requested not to include copyrighted materials in their submission. For further details with respect to this amendment action, see the application for amendment which is available for public inspection at the Commission's PDR, located at One White Flint North, Public File Area 01F21, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available records will be accessible from the ADAMS Public Electronic Reading Room on the Internet at the NRC Web site, https:// www.nrc.gov/reading-rm/adams.html. If you do not have access to ADAMS or if there are problems in accessing the documents located in ADAMS, contact the PDR Reference staff at 1 (800) 397- [[Page 66946]] 4209, (301) 415-4737 or by e-mail to pdr.resource@nrc.gov. Tennessee Valley Authority, Docket No. 50-390, Watts Bar Nuclear Plant, Unit 1, Rhea County, Tennessee Date of amendment request: August 1, 2008. Description of amendment request: The amendment request contains sensitive unclassified non-safeguards information (SUNSI). The proposed amendment would revise the following: (1) Surveillance Requirement (SR) 3.5.1.4, Accumulators, and SR 3.5.4.3, Refueling Water Storage Tank, to specify three discrete levels of boron concentrations (Level 1, 2, or 3), (2) Technical specification (TS) 4.2.1, Fuel Assemblies, to increase the maximum number of Tritium Producing Burnable Absorber Rods (TPBARs) that can be irradiated per cycle from 400 to 2304, and (3) TS 5.9.5, Core Operating Limits Report (COLR), to indicate that the cycle specific boron concentrations (Level 1, 2, or 3) are specified in the COLR. Basis for proposed no significant hazards consideration determination: As required by 10 CFR 50.91(a), the licensee has provided its analysis of the issue of no significant hazards consideration, which is presented below: 1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated? Response: No. a. Boron Concentration The proposed change modifies the required boron concentration for the Cold Leg Accumulators (CLAs) and RWST [refueling water storage tank]. The proposed values have been verified to maintain the required accident mitigation safety function for the CLAs and RWST. The CLAs and RWST safety function is to mitigate accidents that require the injection of borated water to cool the core and to control reactivity. These functions are not potential sources for accident generation and the modification of the boron concentration that supports event mitigation will not increase the potential for an accident. Therefore, the possibility of an accident is not increased by the proposed changes. The minimum boron levels are based on the specific requirements of the core design. For each reload core design, the boron level required for subcriticality will be specified. Since the boron levels will continue to maintain the safety function of the CLAs and RWST in the same manner as currently approved, the consequences of an accident are not increased by the proposed changes. The increase in the number of TPBARs does not adversely affect reactor neutronics or thermal-hydraulic performance; therefore, they do not significantly increase the probability of accidents or equipment malfunctions while in the reactor. The neutronic behavior of the TPBARs mimics that of standard burnable absorbers with only slight differences which are accommodated in the core design. The reload safety analysis performed for Watts Bar Unit 1 prior to each refueling cycle will confirm that any minor effects due to TPBARs on the reload core will be within fuel design limits. Analysis has shown that TPBARS are not expected to fail during Condition I through III events. TPBARs may fail during a large break LOCA or as a result of a fuel handling accident. However, the radiological consequences of these events are within 10 CFR 100 limits. b. RCCA [Rod Cluster Control Assemblies] Insertion WBN Unit 1 proposes to credit RCCA insertion of negative reactivity for criticality control during the core cooling flow path realignment from cold leg recirculation to hot leg recirculation following the postulated cold leg LOCA [loss-of-coolant accident]. No physical modifications will be made to plant systems, structures, or components. Credit for RCCA insertion is only being applied to demonstrate core subcriticality upon hot leg switchover (HLSO) following a cold leg LOCA. The performance criteria codified in 10 CFR 50.46 continues to be met. The ability of the RCCAs to insert under cold leg LOCA and seismic conditions is based on analysis given in WCAP- 16932-P performed by Westinghouse [Electric Company LLC]. These analyses address reactor vessel component structural distortion in a LOCA environment coincident with a seismic event. The results indicated that RCCA guide tube deflection, fuel assembly grid distortion, and displacement of the control rod driveline and CRDM supports will not preclude RCCA insertion following a cold leg LOCA. No physical modifications will be made to plant systems, structures, or components in order to implement the proposed methodology change. The safety functions of the safety related systems and components, which are related to accident mitigation, have not been altered. Therefore, the reliability of RCCA insertion is not affected. As such, taking credit for RCCA insertion does not alter the probability of a cold leg LOCA (the design basis accident at issue). The Westinghouse analyses provided in Enclosure 5 and 6 of the application demonstrate that RCCA insertion will occur, with substantial margin, following a design basis cold leg LOCA combined with a seismic event. Crediting RCCA insertion does not affect mechanisms for a malfunction that could impact the HLSO subcriticality analysis, or mechanisms that could initiate a LOCA. Taking credit for the negative reactivity available from insertion of the RCCAs, which is currently assumed for various accident analyses within the WBN Unit 1 licensing basis (e.g., small break LOCA, main steamline break, feedline break, steam generator tube rupture), does not affect equipment malfunction probability directly or indirectly. Therefore, crediting the RCCAs as a source of negative reactivity for post-LOCA criticality control at the time of HLSO does not significantly increase the probability of an accident previously evaluated. Furthermore, the traditional conservative assumption that the most reactive RCCA is stuck fully out of the core is being maintained. A malfunction that results in one RCCA to fail to insert is a credible scenario, and is being considered for the post-LOCA subcriticality analysis following a cold leg LOCA. There will be sufficient negative reactivity, even with the most reactive RCCA stuck fully out of the core, to assure core subcriticality post- LOCA, as supported by the subcriticality analysis that is confirmed each and every fuel cycle as part of the reload documentation (i.e., the Reload Safety Evaluations). The core is shown to remain subcritical during the post-LOCA long-term cooling period, specifically while HLSO is performed. Thus, no additional radiological source terms are generated and the consequences of an accident previously evaluated in the UFSAR will not be significantly increased. Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated. 2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated? Response: No. a. Boron Concentration The proposed change of boron concentrations for the CLAs and RWST does not have a potential to generate accidents as they only serve to perform mitigation functions associated with an accident. The proposed requirements will maintain the mitigation function in an identical manner as currently approved. There is no plant equipment or operational changes associated with the proposed revision other than the adjustment of the boron level in the CLAs and RWST. The TPBARS have been designed to be compatible with existing Westinghouse 17 x 17 fuel assemblies and conventional Burnable Poison Rod Assembly (BPRA) handling tools, equipment, and procedures, and therefore, no new accidents or equipment malfunctions are created by the handling of TPBARS. Therefore, since the CLA and RWST functions are not altered and the plant will continue to operate with compatible components, the possibility of a new or different kind of an accident is not created. b. RCCA Insertion The proposed change involves crediting the negative reactivity that is available from the RCCAs for an analysis applicable several hours after the initiation of a cold leg LOCA. As such, this change involves post-LOCA recovery actions several hours after the break has occurred and, therefore, does not involve accident initiation. As discussed above, Westinghouse analyses demonstrated that the RCCAs will insert following a cold leg LOCA with seismic loadings. Thus, the safety functions of safety related systems and components have not been altered by this change. Crediting the negative reactivity that is available from the RCCAs for the post-LOCA subcriticality analysis upon HLSO does not cause the initiation of any accident, [[Page 66947]] nor does the proposed activity create any new credible limiting single failure. Crediting the insertion of RCCAs does not result in any event previously deemed incredible being made credible nor is there any introduction of any new failure mechanisms that are not currently considered in the design basis LOCA. There are no changes introduced by this amendment concerning how safety related equipment is designed to operate under normal or design basis accident conditions since the calculations supporting RCCA insertion following a cold leg LOCA have assumed design basis break sizes in conjunction with seismic loadings. Therefore, the possibility of an accident of a different type than already evaluated in the UFSAR is not created. 3. Does the proposed amendment involve a significant reduction in a margin of safety? Response: No. a. Boron Concentration This change proposes boron concentration requirements that support the accident mitigation functions of the CLAs and RWST equivalent to the currently approved limits. The proposed change does not alter any plant equipment or components and does not alter any setpoints utilized for the actuation of accident mitigation system or control functions. The proposed boron values have been verified to provide an adequate level of reactivity control for accident mitigation. TPBARs have been designed to be compatible with existing fuel assemblies, TPBARs do not adversely affect reactor neutronic or thermal-hydraulic performance. Analysis indicates that reactor core behavior and offsite doses remain relatively unchanged. b. RCCA Insertion Presently, no credit is taken for RCCA insertion in the analysis to demonstrate post-cold leg LOCA subcriticality at the time of HLSO. The current subcriticality analysis for this scenario relies only on the boron provided by the RWST and the accumulators. Thus, RCCA insertion provides another source of negative reactivity (margin of safety). Revising the post-LOCA subcriticality analysis to credit the negative reactivity associated with the RCCAs is a means to offset the reactivity penalty due to potential TPBAR failures and sump dilution at the time of hot leg switchover. The incorporation of this ``defense-in-depth'' source of negative reactivity in the HLSO subcriticality analysis has been conservatively determined to not cause a reduction in the margin of safety. 10 CFR 50, Appendix K, I.A.2., states, in part, that ``[r]od trip and insertion may be assumed if they are calculated to occur,'' and provides for crediting RCCA insertion as an acceptable feature of emergency core cooling system (ECCS) evaluation models. The proposed change is based upon an analysis for WBN Unit 1 that demonstrates that the control rods will indeed insert and the resulting negative reactivity can be credited for post-LOCA criticality control. The proposed change would ensure that post-LOCA subcriticality is maintained during HLSO. Subsequently, there would not be a challenge to long-term core cooling due to a return to a critical condition. This being the case, the requirements of 10 CFR 50,46(b)(5) that, ``* * * the calculated core temperature shall be maintained at an acceptably low value and decay heat shall be removed for the extended period of time * * *'' continues to be satisfied and the margin of safety in the WBN licensing basis is preserved. Therefore, the proposed change does not involve a significant reduction in a margin of safety. Based on the above, TVA concludes that the proposed amendment does not involve a significant hazards consideration under the standards set forth in 10 CFR 50.92(c), and accordingly, a finding of ``no significant hazards consideration'' is justified. The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration. Attorney for licensee: General Counsel, Tennessee Valley Authority, 400 West Summit Hill Drive, ET 11A, Knoxville, Tennessee 37902. NRC Branch Chief: L. Raghavan. Order Imposing Procedures for Access to Sensitive Unclassified Non- Safeguards Information (SUNSI) and Safeguards Information (SGI) for Contention Preparation Tennessee Valley Authority, Docket No. 50-390, Watts Bar Nuclear Plant, Unit 1, Rhea County, Tennessee 1. This order contains instructions regarding how potential parties to the proceedings listed above may request access to documents containing sensitive unclassified information (SUNSI and SGI). 2. Within ten (10) days after publication of this notice of opportunity for hearing, any potential party as defined in 10 CFR 2.4 who believes access to SUNSI or SGI is necessary for a response to the notice may request access to SUNSI or SGI. A ``potential party'' is any person who intends or may intend to participate as a party by demonstrating standing and the filing of an admissible contention under 10 CFR 2.309. Requests submitted later than ten (10) days will not be considered absent a showing of good cause for the late filing, addressing why the request could not have been filed earlier. 3. The requester shall submit a letter requesting permission to access SUNSI and/or SGI to the Office of the Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemakings and Adjudications Staff, and provide a copy to the Associate General Counsel for Hearings, Enforcement and Administration, Office of the General Counsel, Washington, DC 20555-0001. The expedited delivery or courier mail address for both offices is U.S. Nuclear Regulatory Commission, 11555 Rockville Pike, Rockville, MD 20852. The e-mail address for the Office of the Secretary and the Office of the General Counsel are hearing.docket@nrc.gov and ogcmailcenter.resource@nrc.gov, respectively.\1\ The request must include the following information: --------------------------------------------------------------------------- \1\ See footnote 6. While a request for hearing or petition to intervene in this proceeding must comply with the filing requirements of the NRC's ``E-Filing Rule,'' the initial request to access SUNSI and/or SGI under these procedures should be submitted as described in this paragraph. --------------------------------------------------------------------------- a. A description of the licensing/enforcement action with a citation to this Federal Register notice of hearing/notice of opportunity for hearing; b. The name and address of the potential party and a description of the potential party's particularized interest that could be harmed by the action identified in (a)/if the enforcement action is not sustained; c. If the request is for SUNSI, the identity of the individual requesting access to SUNSI and the requester's need for the information in order to meaningfully participate in this adjudicatory proceeding, particularly why publicly available versions of the application would not be sufficient to provide the basis and specificity for a proffered contention; d. If the request is for SGI, the identity of the individual requesting access to SGI and the identity of any expert, consultant or assistant who will aid the requester in evaluating the SGI, and information that shows: (i) Why the information is indispensable to meaningful participation in this licensing proceeding; and (ii) The technical competence (demonstrable knowledge, skill, experience, training or education) of the requester to understand and use (or evaluate) the requested information 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 demonstrates technical competence as well as trustworthiness and reliability, and who agrees to sign a non-disclosure affidavit and be bound by the terms of a protective order; and e. If the request is for SGI, Form SF-85, ``Questionnaire for Non- Sensitive Positions,'' Form FD-258 (fingerprint card), and a credit check release form completed by the individual who seeks access to SGI and each individual who [[Page 66948]] will aid the requester in evaluating the SGI. For security reasons, Form SF-85 can only be submitted electronically, through a restricted- access database. To obtain online access to the form, the requester should contact the NRC's Office of Administration at 301-415-0320.\2\ The other completed forms must be signed in original ink, accompanied by a check or money order payable in the amount of $191.00 to the U.S. Nuclear Regulatory Commission for each individual, and mailed to the: Office of Administration, Security Processing Unit, Mail Stop T-6E46, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0012. --------------------------------------------------------------------------- \2\ The requester will be asked to provide his or her full name, social security number, date and place of birth, telephone number, and e-mail address. After providing this information, the requester usually should be able to obtain access to the online form within one business day. --------------------------------------------------------------------------- These forms will be used to initiate the background check, which includes fingerprinting as part of a criminal history records check. Note: copies of these forms do not need to be included with the request letter to the Office of the Secretary, but the request letter should state that the forms and fees have been submitted as described above. 4. To avoid delays in processing requests for access to SGI, all forms should be reviewed for completeness and accuracy (including legibility) before submitting them to the NRC. Incomplete packages will be returned to the sender and will not be processed. 5. Based on an evaluation of the information submitted under items 2 and 3.a through 3.d, above, the NRC staff will determine within ten days of receipt of the written access request whether (1) there is a reasonable basis to believe the petitioner is likely to establish standing to participate in this NRC proceeding, and (2) there is a legitimate need for access to SUNSI or need to know the SGI requested. For SGI, the need to know determination is made based on whether the information requested is necessary (i.e., indispensable) for the proposed recipient to proffer and litigate a specific contention in this NRC proceeding \3\ and whether the proposed recipient has the technical competence (demonstrable knowledge, skill, training, education, or experience) to evaluate and use the specific SGI requested in this proceeding. --------------------------------------------------------------------------- \3\ Broad SGI requests under these procedures are thus highly unlikely to meet the standard for need to know; furthermore, staff redaction of information from requested documents before their release may be appropriate to comport with this requirement. These procedures do not authorize unrestricted disclosure or less scrutiny of a requester's need to know than ordinarily would be applied in connection with an already-admitted contention. --------------------------------------------------------------------------- 6. If standing and need to know SGI are shown, the NRC staff will further determine based upon completion of the background check whether the proposed recipient is trustworthy and reliable. The NRC staff will conduct (as necessary) an inspection to confirm that the recipient's information protection systems are sufficient to protect SGI from inadvertent release or disclosure. Recipients may opt to view SGI at the NRC's facility rather than establish their own SGI protection program to meet SGI protection requirements. 7. A request for access to SUNSI or SGI will be granted if: a. The request has demonstrated that there is a reasonable basis to believe that a potential party is likely to establish standing to intervene or to otherwise participate as a party in this proceeding; b. The proposed recipient of the information has demonstrated a need for SUNSI or a need to know for SGI, and that the proposed recipient of SGI is trustworthy and reliable; c. The proposed recipient of the information has executed a Non- Disclosure Agreement or Affidavit and agrees to be bound by the terms of a Protective Order setting forth terms and conditions to prevent the unauthorized or inadvertent disclosure of SUNSI and/or SGI; and d. The presiding officer has issued a protective order concerning the information or documents requested.\4\ Any protective order issued shall provide that the petitioner must file SUNSI or SGI contentions 25 days after receipt of (or access to) that information. However, if more than 25 days remain between the petitioner's receipt of (or access to) the information and the deadline for filing all other contentions (as established in the notice of hearing or opportunity for hearing), the petitioner may file its SUNSI or SGI contentions by that later deadline. --------------------------------------------------------------------------- \4\ If a presiding officer has not yet been designated, the Chief Administrative Judge will issue such orders, or will appoint a presiding officer to do so. --------------------------------------------------------------------------- 8. If the request for access to SUNSI or SGI is granted, the terms and conditions for access to sensitive unclassified information will be set forth in a draft protective order and affidavit of non-disclosure appended to a joint motion by the NRC staff, any other affected parties to this proceeding,\5\ and the petitioner(s). If the diligent efforts by the relevant parties or petitioner(s) fail to result in an agreement on the terms and conditions for a draft protective order or non- disclosure affidavit, the relevant parties to the proceeding or the petitioner(s) should notify the presiding officer within ten (10) days, describing the obstacles to the agreement. --------------------------------------------------------------------------- \5\ Parties/persons other than the requester and the NRC staff will be notified by the NRC staff of a favorable access determination (and may participate in the development of such a motion and protective order) if it concerns SUNSI and if the party/ person's interest independent of the proceeding would be harmed by the release of the information (e.g., as with proprietary information). --------------------------------------------------------------------------- 9. If the request for access to SUNSI is denied by the NRC staff or a request for access to SGI is denied by NRC staff either after a determination on standing and need to know or, later, after a determination on trustworthiness and reliability, the NRC staff shall briefly state the reasons for the denial. Before the Office of Administration makes an adverse determination regarding access, the proposed recipient must be provided an opportunity to correct or explain information. The requester may challenge the NRC staff's adverse determination with respect to access to SUNSI or with respect to standing or need to know for SGI by filing a challenge within ten (10) days of receipt of that determination with (a) the presiding officer designated in this proceeding; (b) if no presiding officer has been appointed, the Chief Administrative Judge, or if he or she is unavailable, another administrative judge, or an administrative law judge with jurisdiction pursuant to Sec. 2.318(a); or (c) if another officer has been designated to rule on information access issues, with that officer. In the same manner, an SGI requester may challenge an adverse determination on trustworthiness and reliability by filing a challenge within fifteen (15) days of receipt of that determination. In the same manner, a party other than the requester may challenge an NRC staff determination granting access to SUNSI whose release would harm that party's interest independent of the proceeding. Such a challenge must be filed within ten (10) days of the notification by the NRC staff of its grant of such a request. If challenges to the NRC staff determinations are filed, these procedures give way to the normal process for litigating disputes concerning access to information. The availability of interlocutory review by the Commission of orders ruling on such NRC staff determinations (whether granting or denying access) is governed by 10 CFR 2.311.\6\ --------------------------------------------------------------------------- \6\ As of October 15, 2007, the NRC's final ``E-Filing Rule'' became effective. See Use of Electronic Submissions in Agency Hearings (72 FR 49139; Aug. 28, 2007). Requesters should note that the filing requirements of that rule apply to appeals of NRC staff determinations (because they must be served on a presiding officer or the Commission, as applicable), but not to the initial SUNSI/SGI requests submitted to the NRC staff under these procedures. --------------------------------------------------------------------------- [[Page 66949]] 10. The Commission expects that the NRC staff and presiding officers (and any other reviewing officers) will consider and resolve requests for access to SUNSI and/or SGI, and motions for protective orders, in a timely fashion in order to minimize any unnecessary delays in identifying those intervenors/petitioners who have standing and who have propounded contentions meeting the specificity and basis requirements in 10 CFR Part 2. Attachment 1 to this Order summarizes the general target schedule for processing and resolving requests under --------------------------------------------------------------------------- these procedures. Dated at Rockville, Maryland, this 3rd day of November 2008. For the Nuclear Regulatory Commission. Annette L. Vietti-Cook, Secretary of the Commission. Attachment 1--General Target Schedule for Processing and Resolving Requests for Access to Sensitive Unclassified Non-Safeguards Information (SUNSI) and Safeguards Information (SGI) in This Proceeding ------------------------------------------------------------------------ Day Event/activity ------------------------------------------------------------------------ 0............................. Publication of Federal Register notice/ other notice of proposed action and opportunity for hearing, including order with instructions for access requests. 10............................ Deadline for submitting requests for access to SUNSI and/or SGI with information: supporting the standing of a potential party identified by name and address; describing the need for the information in order for the potential party to participate meaningfully in an adjudicatory proceeding; demonstrating that access should be granted (e.g., showing technical competence for access to SGI); and, for SGI, including application fee for fingerprint/ background check. 60............................ Deadline for submitting petition for intervention containing: (i) Demonstration of standing; (ii) all contentions whose formulation does not require access to SUNSI and/or SGI (+25 answers to petition for intervention; +7 petitioner/requestor reply). 20............................ NRC staff informs the requester of the staff's determination whether the request for access provides a reasonable basis to believe standing can be established and shows (1) need for SUNSI or (2) need to know for SGI. (For SUNSI, NRC staff also informs any party to the proceeding whose interest independent of the proceeding would be harmed by the release of the information.) If NRC staff makes the finding of need for SUNSI and likelihood of standing, NRC staff begins document processing (preparation of redactions or review of redacted documents). If NRC staff makes the finding of need to know for SGI and likelihood of standing, NRC staff begins background check (including fingerprinting for a criminal history records check), information processing (preparation of redactions or review of redacted documents), and readiness inspections. 25............................ If NRC staff finds no ``need,'' ``need to know,'' or likelihood of standing, the deadline for petitioner/requester to file a motion seeking a ruling to reverse the NRC staff's denial of access; NRC staff files copy of access determination with the presiding officer (or Chief Administrative Judge or other designated officer, as appropriate). If NRC staff finds ``need'' for SUNSI, the deadline for any party to the proceeding whose interest independent of the proceeding would be harmed by the release of the information to file a motion seeking a ruling to reverse the NRC staff's grant of access. 30............................ Deadline for NRC staff reply to motions to reverse NRC staff determination(s). 40............................ (Receipt +30) If NRC staff finds standing and need for SUNSI, deadline for NRC staff to complete information processing and file motion for Protective Order and draft Non- Disclosure Affidavit. Deadline for applicant/licensee to file Non- Disclosure Agreement for SUNSI. 190........................... (Receipt +180) If NRC staff finds standing, need to know for SGI, and trustworthiness and reliability, deadline for NRC staff to file motion for Protective Order and draft Non- disclosure Affidavit (or to make a determination that the proposed recipient of SGI is not trustworthy or reliable). Note: Before the Office of Administration makes an adverse determination regarding access, the proposed recipient must be provided an opportunity to correct or explain information. 205........................... Deadline for petitioner to seek reversal of a final adverse NRC staff determination either before the presiding officer or another designated officer. A............................. If access granted: Issuance of presiding officer or other designated officer decision on motion for protective order for access to sensitive information (including schedule for providing access and submission of contentions) or decision reversing a final adverse determination by the NRC staff. A + 3......................... Deadline for filing executed Non- Disclosure Affidavits. Access provided to SUNSI and/or SGI consistent with decision issuing the protective order. A + 28........................ Deadline for submission of contentions whose development depends upon access to SUNSI and/or SGI. However, if more than 25 days remain between the petitioner's receipt of (or access to) the information and the deadline for filing all other contentions (as established in the notice of hearing or opportunity for hearing), the petitioner may file its SUNSI or SGI contentions by that later deadline. A + 53........................ (Contention receipt +25) Answers to contentions whose development depends upon access to SUNSI and/or SGI. A + 60........................ (Answer receipt +7) Petitioner/ Intervenor reply to answers. B............................. Decision on contention admission. ------------------------------------------------------------------------ [FR Doc. E8-26716 Filed 11-10-08; 8:45 am] BILLING CODE 7590-01-P
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