Notice; 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, 7482-7488 [E9-3282]

Agencies

• NUCLEAR REGULATORY COMMISSION

[Federal Register Volume 74, Number 30 (Tuesday, February 17, 2009)]
[Notices]
[Pages 7482-7488]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-3282]


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NUCLEAR REGULATORY COMMISSION

[NRC-2009-0051]


Notice; 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 HazardsConsideration 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

[[Page 7483]]

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, TWB-05-B01M, 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. Documents may be examined, 
and/or copied for a fee, at the NRC's Public Document Room (PDR), 
located at One White Flint North, Public File Area 01 F21, 11555 
Rockville Pike (first floor), Rockville, Maryland.
    Within 60 days after the date of publication of this notice, any 
person(s) whose interest may be affected by this action may file a 
request for a hearing and a petition to intervene with respect to 
issuance of the amendment to the subject facility operating license. 
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 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.

[[Page 7484]]

    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 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 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 e-mail to pdr.resource@nrc.gov.

FirstEnergy Nuclear Operating Company, et al., Docket No. 50-412, 
Beaver Valley Power Station, Unit No. 2 (BVPS-2), Beaver County, 
Pennsylvania

    Date of Amendment Request: October 10, 2008.
    Description of Amendment Request: This amendment request contains 
sensitive unclassified non-safeguards information. The proposed 
amendment would modify TechnicalSpecifications (TSs) to allow an 
additional method of repair for steam generator (SG) tubes, involving 
the use of Westinghouse leak limiting Alloy 800 sleeves, and as well 
as, clarify an existing reporting requirement concerning SG tube 
inspections.
    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 change involve a significant increase in 
the probability or consequences of an accident previously evaluated?
    Response: No. The leak limiting Alloy 800 sleeves are designed 
using the applicable American Society of Mechanical Engineers (ASME) 
Boiler andPressure Vessel Code and, therefore, meet the design 
objectives of the original SG tubing. The applied stresses and 
fatigue usage for the sleeves are bounded by the limits established 
in the ASME Code. Mechanical testing has shown that the structural 
strength of sleeves under normal, upset, emergency, and faulted 
conditions provides margin to the acceptance limits.
    These acceptance limits bound the most limiting (three times 
normal operating pressure differential) burst margin recommended by 
NRC Regulatory Guide 1.121, ``Bases for Plugging Degraded PWR Steam 
Generator Tubes.'' Burst testing of sleeve/tube assemblies has 
confirmed the analytical results and demonstrated that no 
unacceptable levels of primary to secondary leakage are expected 
during any plant condition.
    The leak limiting Alloy 800 sleeve depth-based structural limit 
is determined using

[[Page 7485]]

NRC guidance and the pressure stress equation of ASME Code,Section 
III with additional margin added to account for the configuration of 
long axial cracks. Calculations show that a depth-based limit of 45 
percent through-wall degradation is acceptable. However, the 
proposed amendment provides additional margin by requiring an Alloy 
800 sleeved tube to be plugged on detection of any flaw in the 
sleeve or in the pressure boundary portion of the original tube wall 
in the sleeve to tube joint. Degradation of the original tube 
adjacent to the nickel band of an Alloy 800 sleeve, regardless of 
depth, would not prevent the sleeve from satisfying design 
requirements. Thus, flaw detection capabilities within the original 
tube adjacent to the sleeve nickel band are not necessary in order 
to justify continued operation of the sleeved tube.
    Evaluation of repaired SG tube testing and analysis indicates no 
detrimental effects on the leak limiting Alloy 800 sleeve or sleeved 
tube assembly from reactor system flow, primary or secondary coolant 
chemistries, thermal conditions or transients, or pressure 
conditions as may be experienced at BVPS-2. Corrosion testing and 
historical performance of sleeve/tube assemblies indicates no 
evidence of sleeve or tube corrosion considered detrimental under 
anticipated service conditions.
    Implementation of the proposed change has no significant effect 
on either the configuration of the plant or the manner in which it 
is operated. The consequences of a hypothetical failure of the leak 
limiting Alloy 800 sleeve/tube assembly are bounded by the current 
SG tube rupture (SGTR) analysis described in the BVPS-2 Updated 
Final Safety Analysis Report because the total number of plugged SG 
tubes (including equivalency associated with installed sleeves) is 
required to be consistent with accident analysis assumptions. A main 
steam line break or feedwater line break would not cause a SGTR 
since the sleeves are analyzed for a maximum accident differential 
pressure greater than that predicted in the BVPS-2 safety analysis. 
The sleeve/tube assembly leakage during plant operation would be 
minimal and is well within the allowable TS leakage limits and 
accident analysis assumptions, neither of which would be changed to 
compensate for the proposed repair method.
    Proposed changes to TS 5.6.6.2.4 only affect a reporting 
requirement and do not affect plant design, operation or 
maintenance. They are intended as clarifications that would 
reinforce the original intent of the reporting requirement.
    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. The leak limiting Alloy 800 sleeves are designed 
using the applicable ASME Code as guidance, and therefore meet the 
objectives of the original SG tubing. As a result, the functions of 
the SG will not be significantly affected by the installation of the 
proposed sleeve. Therefore, the only credible failure mode for the 
sleeve and/or tube is to rupture, which has already been evaluated. 
The continued integrity of the installed sleeve/tube assembly is 
periodically verified as required by the TSs and a sleeved tube will 
be plugged on detection of a flaw in the sleeve or in the pressure 
boundary portion of the original tube wall in the sleeve to tube 
joint.
    Proposed changes to TS 5.6.6.2.4 only affect a reporting 
requirement and do not affect plant design, operation or 
maintenance. They are editorial in nature and are intended as 
clarifications that would reinforce the original intent of the 
reporting requirement.
    Implementation of the proposed change has no significant effect 
on either the configuration of the plant or the manner in which it 
is operated.
    Therefore, the proposed change does not create the possibility 
of a new or different kind of accident from any previously 
evaluated.
    3. Does the proposed amendment involve a significant reduction 
in a margin of safety?
    Response: No. The repair of degraded SG tubes with leak limiting 
Alloy 800 sleeves restores the structural integrity of the degraded 
tube under normal operating and postulated accident conditions. The 
reduction in reactor coolant system flow due to the addition of 
Alloy 800 sleeves is not significant because the cumulative effect 
of all repaired (sleeved) and plugged tubes will continue to allow 
reactor coolant flow to be greater than the flow limit established 
in the TS limiting condition of operation 3.4.1. The design safety 
factors utilized for the sleeves are consistent with the safety 
factors in the ASME Boiler and Pressure Vessel Code used in the 
original SG design. Tubes with sleeves would also be subject to the 
same safety factors as the original tubes which are described in the 
performance criteria for SG tube integrity in the existing TSs. 
These performance criteria are not being changed to compensate for 
the proposed repair method. The sleeve and portions of the installed 
sleeve/tube assembly that represent the reactor coolant pressure 
boundary will be monitored and a sleeved tube will be plugged on 
detection of a flaw in the sleeve or in the pressure boundary 
portion of the original tube wall in the leak limiting sleeve/tube 
assembly. Use of the previously identified design criteria and 
design verification testing ensures that the margin of safety is not 
significantly different from the original SG tubes.
    Proposed changes to TS 5.6.6.2.4 only affect a reporting 
requirement and do not affect plant design, operation or 
maintenance. They are editorial in nature and are intended as 
clarifications that would reinforce the original intent of the 
reporting requirement.
    Therefore, the proposed change does not involve a significant 
reduction in a margin of safety.

    The Nuclear Regulatory Commission (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: David W. Jenkins, FirstEnergy Nuclear 
Operating Company, FirstEnergy Corporation, 76 South Main Street, 
Akron, OH 44308.
    NRC Branch Chief: Mark G. Kowal.

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

FirstEnergy Nuclear Operating Company, et al., Docket No. 50-412, 
Beaver Valley Power Station, Unit No. 2 (BVPS-2), Beaver County, 
Pennsylvania

    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:
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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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[[Page 7486]]

    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 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 301-492-3524.\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.
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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 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

[[Page 7487]]

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 10 CFR 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 [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 10th day of February 2009.
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.

[[Page 7488]]

 
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. E9-3282 Filed 2-13-09; 8:45 am]
BILLING CODE 7590-01-P