Notice; Application and Amendment 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, 74757-74763 [E8-28949]

Agencies

• NUCLEAR REGULATORY COMMISSION

[Federal Register Volume 73, Number 237 (Tuesday, December 9, 2008)]
[Notices]
[Pages 74757-74763]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-28949]


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NUCLEAR REGULATORY COMMISSION


Notice; Application and Amendment 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

[[Page 74758]]

the pendency before the Commission of a request for a hearing from any 
person.
    This notice includes a notice of amendment 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 request involves 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 6D22, 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 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

[[Page 74759]]

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 in 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 Viewer(tm) to 
access the Electronic Information Exchange (EIE), a component of the E-
Filing system. The Workplace Forms Viewer(tm) is free and is available 
at 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 Meta-System Help 
Desk, which is available between 8 a.m. and 8 p.m., Eastern Time, 
Monday through Friday. The Meta-System Help Desk can be contacted by 
telephone at 1-866-672-7640 or by e-mail at MSHD.Resource@nrc.gov.
    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 and/
or request should be granted and/or the contentions should be admitted, 
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) 397-4209, (301) 415-4737 or 
by email to pdr.resource@nrc.gov.

FPL Energy, Point Beach, LLC, Docket Nos. 50-266 and 50-301, Point 
Beach Nuclear Plant, Units 1 and 2, Town of Two Creeks, Manitowoc 
County, Wisconsin

    Date of amendment request: July 24, 2008.
    Description of amendment request: This amendment request contains 
sensitive unclassified non-safeguards information (SUNSI). This 
amendment requests changes to Operating Licenses DPR-24 and DPR-27, 
Point Beach Nuclear Plant (PBNP) Units 1 and 2. The proposed changes to 
the PBNP Operating Licenses will revise the Technical Specifications 
(TS) to incorporate the results of a new spent fuel pool criticality 
analysis. The results of the new criticality analysis will provide the 
basis necessary for changes to TS 3.7.12--Spent Fuel Pool Storage and 
TS 4.3.1--Criticality.

[[Page 74760]]

    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
    Operation of the facility in accordance with the proposed 
amendment request does not involve a significant increase in the 
probability or consequences of an accident previously evaluated. The 
presence of soluble boron in the SFP [spent fuel pool] water being 
used for criticality control does not increase the probability of a 
dropped fuel assembly accident. The handling of the fuel assemblies 
in the SFP has always been performed and will continue to be 
performed in borated water.
    There is no increase in the probability of the accidental 
misloading of fuel assemblies into the SFP fuel storage racks when 
considering the presence of soluble boron for criticality control. 
Fuel assembly placement will continue to be controlled pursuant to 
approved fuel handling procedures and in accordance with the spent 
fuel storage rack limitations specified in the TS. There is no 
increase in the consequences for an accidental misloading of fuel 
assemblies in the SFP fuel storage racks because the criticality 
analyses demonstrate that the pool will remain subcritical following 
an accidental misloading.
    Soluble boron credit is used to provide margin to offset 
uncertainties, tolerances, and off-normal/accident conditions, and 
to provide subcritical margin such that the SFP is keff maintained 
less than or equal to 0.95. The plant-specific criticality analysis 
results demonstrate that the spent fuel rack keff [effective 
multiplication factor] will remain <1.0 (at a 95/95 percent 
probability and confidence level) even with the SFP flooded with 
unborated water.
    There is no increase in the probability of the loss of normal 
cooling to the SFP when considering the presence of soluble boron 
criticality control since a high concentration of soluble boron has 
always been maintained in the SFP water. A loss of normal cooling to 
the SFP will result in a reactivity increase for fuel assemblies 
stored in the All-Cell storage configuration. Maintaining 664 ppm 
[parts per million] boron in the SFP ensures that keff remains less 
than or equal to 0.95 for this accident scenario. Because adequate 
soluble boron will be maintained in the SFP water the consequences 
of a loss of normal cooling to the SFP will not be increased.
    Therefore, the proposed changes do 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
    Under the proposed amendment, no changes are being made to the 
fuel storage racks themselves, to any other systems, or to the 
physical structures of the primary auxiliary building. Therefore, 
there are no changes proposed to the plant configuration, equipment 
design, or installed equipment.
    Criticality accidents in the SFP are not new or different types 
of accidents. They have been analyzed in the FSAR and in fuel 
storage criticality analysis reports associated with specific 
license amendments. The proposed new SFP storage limitations are 
those made in the new criticality analysis. They will not have a 
significant effect on normal SFP operations and maintenance. The 
most limiting accident scenario changes from a misloaded fresh fuel 
assembly adjacent to the storage racks, to a misloaded fuel assembly 
in a 1 out of 4 storage pattern. Established administrative controls 
will prevent a misloading event in the SFP. Administrative controls 
include use of independently prepared and reviewed fuel movement 
authorization paperwork, use of qualified fuel handling operators 
and oversight of fuel handling operations by an SRO [senior reactor 
operator].
    The current TS include a SFP boron concentration limit that 
conservatively bounds the required boron concentration of the new 
criticality analysis. Since soluble boron has always been maintained 
in the SFP water, implementation of this requirement for SFP 
criticality control purposes has no effect on normal pool operations 
and maintenance. Since soluble boron has always been present in the 
SFP, a dilution event has always been a possibility. The loss of 
substantial amounts of soluble boron from the SFP that could lead to 
keff exceeding 0.95 was evaluated as part of the analyses in support 
of this license amendment request. The evaluation demonstrates that 
if a dilution event were to occur, plant operators would have 
sufficient time to detect and mitigate the accident before the 
minimum boron concentration is reached.
    Therefore, the proposed changes do not create the possibility of 
a new or different kind of accident from any previously evaluated.
    3. Does the proposed amendment result in a significant reduction 
in a margin of safety?
    Response: No
    The proposed amendment uses a different methodology to ensure 
the SFP will remain subcritical. The current licensing basis 
requires the SFP keff be less than or equal to 0.95 when flooded 
with unborated water. Approval of this license amendment request 
will change licensing basis to 10 CFR 50.68, which allows credit for 
soluble boron. The new methodology calculates the minimum boron 
concentration to ensure the SFP keff will be less than or equal to 
0.95 when flooded with borated water.
    The current TS SFP boron requirement significantly exceeds the 
required boron concentration determined in the new criticality 
analysis. Supporting analysis determined there is sufficient time 
for plant operators to detect and mitigate a boron dilution event in 
the SFP. Should an undetected dilution event occur, the new 
methodology also demonstrates the SFP keff will be less than 1.0 
when flooded with unborated water. Therefore, the proposed changes 
do not involve a significant reduction in a margin of safety.

    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: Antonio Fernandez, Esquire, Senior Attorney, 
FPL Energy Point Beach, LLC, P.O. Box 14000, Juno Beach, FL 33408-0420.
    NRC Branch Chief: Lois M. James.

Order Imposing Procedures for Access to Sensitive Unclassified Non-
Safeguards Information (SUNSI) and Safeguards Information (SGI) for 
Contention Preparation

FPL Energy, Point Beach, LLC, Docket Nos. 50-266 and 50-301, Point 
Beach Nuclear Plant, Units 1 and 2, Town of Two Creeks, Manitowoc 
County, Wisconsin

    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,

[[Page 74761]]

respectively.\1\ The request must include the following information:
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    \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.
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    a. A description of the licensing action with a citation to this 
Federal Register 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);
    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 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 TWB-05-B32M, U.S. Nuclear Regulatory 
Commission, Washington, DC 20555-0012.
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    \2\ The requester will be asked to provide his or her full name, 
social security number, date and place of birth, telephone number, 
and email address. After providing this information, the requester 
usually should be able to obtain access to the online form within 
one business day.
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    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.
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    \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.
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    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.
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    \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.
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    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

[[Page 74762]]

within ten (10) days, describing the obstacles to the agreement.
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    \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).
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    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.
---------------------------------------------------------------------------

    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 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 2nd day of December 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.

[[Page 74763]]

 
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. E8-28949 Filed 12-8-08; 8:45 am]
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