Order Prohibiting Operation of Aerotest Radiography and Research Reactor, 46618-46621 [2013-18516]
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Federal Register / Vol. 78, No. 148 / Thursday, August 1, 2013 / Notices
and NPF–92, issued to the licensee. The
exemption is required by Paragraph A.4
of Section VIII, ‘‘Processes for Changes
and Departures,’’ Appendix D to 10 CFR
Part 52 to allow the licensee to depart
from Tier 1 information. The licensee
sought to change the Tier 1 information
located in Table 2.2.1–1, Figure 2.2.1–1,
and Table 2.2.3–6 of its Updated Final
Safety Analysis Report (UFSAR). These
changes sought to add four non-Class 1E
electrical penetration assemblies to the
containment vessel and shield building.
Part of the justification for granting
the exemption was provided by the
review of the amendment. Because the
exemption is necessary in order to issue
the requested license amendment, the
NRC granted the exemption and issued
the amendment concurrently, rather
than in sequence. This included issuing
a combined safety evaluation containing
the NRC staff’s review of both the
exemption request and the license
amendment. The exemption met all
applicable regulatory criteria set forth in
10 CFR 50.12, 10 CFR 52.7, and Section
VIII.A.4. of Appendix D to 10 CFR Part
52. The license amendment was found
to be acceptable as well. The combined
safety evaluation is available in ADAMS
under Accession No. ML13158A324.
Identical exemption documents
(except for referenced unit numbers and
license numbers) were issued to the
licensee for Vogtle Units 3 and 4 (COLs
NPF–91 and NPF–92). These documents
can be found in ADAMS under
Accession Nos. ML13158A314 and
ML13158A317. The exemption is
reproduced (with the exception of
abbreviated titles and additional
citations) in Section II of this document.
The amendment documents for COLs
NPF–91 and NPF–92 are available in
ADAMS under Accession Nos.
ML13158A321 and ML13158A322. A
summary of the amendment documents
is provided in Section III of this
document.
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II. Exemption
Reproduced below is the exemption
document issued to Vogtle Units 3 and
4. It makes reference to the combined
safety evaluation that provides the
reasoning for the findings made by the
NRC (and listed under Item 1) in order
to grant the exemption:
1. In a letter dated September 28,
2012, and as supplemented by letter
dated March 8, 2013, the licensee
requested from the Commission an
exemption from the provisions of 10
CFR Part 52, Appendix D, Section III.B,
as part of license amendment request
12–010, ‘‘Additional Electrical
Penetration Assemblies’’ (LAR 12–010).
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For the reasons set forth in Section
3.1, ‘‘Evaluation of Exemption,’’ of the
NRC staff’s Safety Evaluation, which
can be found in ADAMS under
Accession No. ML13158A324, the
Commission finds that:
A. The exemption is authorized by law;
B. The exemption presents no undue risk
to public health and safety;
C. The exemption is consistent with the
common defense and security;
D. Special circumstances are present in
that the application of the rule in this
circumstance is not necessary to serve the
underlying purpose of the rule;
E. The special circumstances outweigh any
decrease in safety that may result from the
reduction in standardization caused by the
exemption; and
F. The exemption will not result in a
significant decrease in the level of safety
otherwise provided by the design.
2. Accordingly, the licensee is granted
an exemption to the provisions of 10
CFR part 52, Appendix D, Section III.B,
to allow deviations from the Tier 1
certification information in Table 2.2.1–
1, Figure 2.2.1–1, and Table 2.2.3–6 of
the certified Design Control Document,
as described in the licensee’s request
dated September 28, 2012, and as
supplemented on March 8, 2013. This
exemption is related to, and necessary
for the granting of License Amendment
No. 11, which is being issued
concurrently with this exemption.
3. As explained in Section 5.0,
‘‘Environmental Consideration,’’ of the
NRC staff’s Safety Evaluation (ADAMS
Accession No. ML13158A324), this
exemption meets the eligibility criteria
for categorical exclusion set forth in 10
CFR 51.22(c)(9). Therefore, pursuant to
10 CFR 51.22(b), no environmental
impact statement or environmental
assessment needs to be prepared in
connection with the issuance of the
exemption.
4. This exemption is effective as of
July 10, 2013.
III. License Amendment Request
By letter dated September 28, 2012,
the licensee requested that the NRC
amend the COLs for VEGP, Units 3 and
4, COLs NPF–91 and NPF–92. The
licensee supplemented this application
on March 8, 2013. The proposed
amendment would depart from the
UFSAR Tier 1 material, and would
revise the associated material that has
been included in Appendix C of each of
the VEGP, Units 3 and 4, COLs.
Specifically the requested amendment
will revise the Tier 1 information
located in Table 2.2.1–1, Figure 2.2.1–1,
and Table 2.2.3–6 in order to add four
non-Class 1E electrical penetration
assemblies to the containment vessel
and shield building.
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The Commission has determined for
these amendments that the application
complies with the standards and
requirements of the Atomic Energy Act
of 1954, as amended (the Act), and the
Commission’s rules and regulations.
The Commission has made appropriate
findings as required by the Act and the
Commission’s rules and regulations in
10 CFR Chapter I, which are set forth in
the license amendment.
A notice of consideration of issuance
of amendment to facility operating
license or combined license, as
applicable, proposed no significant
hazards consideration determination,
and opportunity for a hearing in
connection with these actions, was
published in the Federal Register on
November 27, 2012 (77 FR 70843). The
supplements had no effect on the no
significant hazards consideration
determination and no comments were
received during the 60-day comment
period.
The Commission has determined that
these amendments satisfy the criteria for
categorical exclusion in accordance
with 10 CFR 51.22. Therefore, pursuant
to 10 CFR 51.22(b), no environmental
impact statement or environmental
assessment need to be prepared for
these amendments.
IV. Conclusion
Using the reasons set forth in the
combined safety evaluation, the staff
granted the exemption and issued the
amendment that the licensee requested
on September 28, 2012, and
supplemented by letter dated March 8,
2013. The exemption and amendment
were issued on July 10, 2013 as part of
a combined package to the licensee
(ADAMS Accession No. ML13158A295).
Dated at Rockville, Maryland, this 25th day
of July 2013.
For the Nuclear Regulatory Commission.
Lawrence Burkhart,
Chief, Licensing Branch 4, Division of New
Reactor Licensing, Office of New Reactors.
[FR Doc. 2013–18521 Filed 7–31–13; 8:45 am]
BILLING CODE 7590–01–P
NUCLEAR REGULATORY
COMMISSION
[Docket No. 50–228; NRC–2012–0286;
License No. R–98; EA–13–097]
Order Prohibiting Operation of
Aerotest Radiography and Research
Reactor
I.
Aerotest Operations, Inc. (Aerotest,
the licensee), is the holder of Facility
Operating License No. R–98, issued on
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July 2, 1965, by the U.S. Atomic Energy
Commission, now the U.S. Nuclear
Regulatory Commission (NRC). Facility
Operating License No. R–98 was issued
pursuant to Section 104c. of the Atomic
Energy Act of 1954, as amended (AEA),
and part 50 of Title 10 of the Code of
Federal Regulations (10 CFR),
‘‘Domestic Licensing of Production and
Utilization Facilities.’’ The license
authorizes the operation of the Aerotest
Radiography and Research Reactor
(ARRR) in accordance with the
conditions specified therein. The ARRR
is located on the licensee’s site in San
Ramon, California. Autoliv, Inc. is the
ultimate corporate parent of Aerotest
and, therefore, has ultimate control of
Aerotest’s license.
II.
Section 104d., ‘‘Medical Therapy and
Research and Development,’’ of the AEA
and 10 CFR 50.38, ‘‘Ineligibility of
Certain Applicants,’’ prohibit the
issuance of any license for a utilization
and production facility useful in the
conduct of research and development
‘‘to any corporation or other entity if the
Commission knows or has reason to
believe it is owned, controlled, or
dominated by an alien, a foreign
corporation, or a foreign government.’’
Autoliv, Inc. is headquartered in
Stockholm, Sweden. The majority of
Autoliv, Inc.’s board of directors and
executive officers are non-U.S. citizens.
The majority of Autoliv, Inc.’s
outstanding stock is held by non-U.S.
citizens. Thus, Autoliv, Inc. is a foreign
corporation for the purposes of the AEA,
and its ownership of ARRR is
prohibited. Nonetheless in 2000,
Autoliv, Inc. acquired Aerotest through
intermediate acquisition of several
wholly owned companies. As a result,
Autoliv, Inc. now has indirect control of
the Aerotest license. Although Autoliv,
Inc.’s acquisition of Aerotest constituted
an indirect transfer of control of the
Aerotest license, this transfer was not
the subject of an application for prior
consent of the NRC as required by 10
CFR 50.80, ‘‘Transfer of Licenses,’’ and,
therefore, the transfer was neither
reviewed nor approved by the NRC.
On October 7, 2003 (Agencywide
Documents Access and Management
System (ADAMS) Accession No.
ML040430495), the NRC staff issued a
letter to Autoliv instructing Autoliv to
develop a full divestiture plan or partial
divestiture and negation action plan and
to report progress on the plan every six
months thereafter. Autoliv developed a
plan but was not able to divest Aerotest
of foreign ownership and control.
By letter dated February 28, 2005, as
supplemented by letters dated May 5,
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2008; March 9, July 21, and September
4, 2009; and January 7, 2010 (ADAMS
Accession Nos. ML13120A434,
ML103370137, ML120900629,
ML092080163, ML092600267,
ML100140375, respectively), Aerotest
applied for renewal of the ARRR
operating license. The licensee has been
operating under the timely renewal
provisions of 10 CFR 2.109, ‘‘Effect of
Timely Renewal Application,’’ since the
expiration of the license on April 16,
2005. Upon review of the renewal
application, the NRC staff noted that
Aerotest still did not satisfy the
requirements of Section 104d. of the
AEA and 10 CFR 50.38. On July 9, 2009
(ADAMS Accession No. ML090830578),
the NRC issued a proposed denial of the
license renewal because of the foreign
ownership issue.
On July 21, 2009 (ADAMS Accession
No. ML092080163), Aerotest notified
the NRC that Autoliv ASP, Inc. (which
is wholly owned by Autoliv, Inc.) and
X-Ray Industries, Inc., had entered into
a non-binding letter of intent for the sale
of the ARRR to X-Ray Industries, Inc.
On January 7, 2010, as amended by
letters dated January 19, February 2,
March 23, and April 1, 2010 (ADAMS
Accession Nos. ML100140375,
ML100490068, ML100880295,
ML100880338, ML100980153,
respectively), the NRC received a
license transfer application from
Autoliv and X-Ray Industries. An NRC
Order, dated July 6, 2010 (ADAMS
Accession No. ML101380228), approved
the license transfer and provided 60
days (extended to October 15, 2010,
through letter dated September 13, 2010
(ADAMS Accession No.
ML102460245)), for the transfer to be
consummated. The Order expired
without the transfer of the license.
On October 15, 2010, Aerotest
voluntarily ceased day-to-day
operations (reactor operation continued
for surveillances). On February 26, 2011
(ADAMS Accession No. ML103640183),
the NRC responded to a January 7, 2011
(ADAMS Accession No.
ML1101180463), letter from Aerotest by
issuing Confirmatory Action Letter
(CAL) No. NRR–2011–001 to Aerotest.
The CAL confirmed actions Aerotest
would take to prepare a
decommissioning plan, manage and
provide funding for the disposition of
fuel, and file an application for a
possession-only license amendment.
Aerotest did not submit a
decommissioning plan and possessiononly license amendment application as
discussed in the CAL. Consequently, on
January 18, 2012 (ADAMS Accession
No. ML120200203), the NRC held a
public meeting with Aerotest to discuss
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the status of the decommissioning plan
and possession-only license amendment
application. At the conclusion of the
meeting, Aerotest agreed to provide the
NRC with milestones and deliverables
as part of a CAL status report due on
January 24, 2012.
In a letter dated January 24, 2012
(ADAMS Accession No. ML12027A010),
Aerotest stated that by March 31, 2012,
it would inform the NRC that either
negotiations for acquisition of the
reactor had ended or negotiations had
resulted in a selected buyer. In a letter
dated March 30, 2012 (ADAMS
Accession No. ML12093A399), Aerotest
informed the NRC that it had selected a
buyer, Nuclear Labyrinth, LLC, and that
a license transfer application would be
submitted by May 30, 2012. Aerotest
and Nuclear Labyrinth, LLC, submitted
a license transfer application on May 30,
2012 (ADAMS Accession Nos.
ML12152A233 and ML12180A384). The
NRC accepted the application for review
on August 14, 2012 (ADAMS Accession
No. ML12213A486), after the applicants
submitted supplemental information on
July 19, 2012 (ADAMS Accession No.
ML122021201). The NRC sent requests
for additional information to the
applicants on two occasions and
reviewed the applicants’ responses,
dated October 15, 2012, and January 10,
2013 (ADAMS Accession Nos.
ML12291A508 and ML13015A395). A
public meeting was held on December
19, 2012 (ADAMS Accession No.
ML13018A003), because the October 15,
2012, submission was insufficient.
During the meeting, the NRC staff
reiterated the financial information
required for NRC approval of the
indirect transfer.
III.
The NRC staff has completed its safety
evaluation (ADAMS Accession No.
ML13129A001) of the license transfer
request. The NRC staff has concluded
that it does not have reasonable
assurance, as required by 10 CFR 50.33,
‘‘Contents of Applications; General
Information,’’ that Nuclear Labyrinth,
LLC, or Aerotest Operations, Inc., would
have sufficient funding to conduct the
activities authorized by the ARRR
license if the license were transferred.
Consequently, the NRC staff is denying
the license transfer request. Therefore,
the ARRR remains under Autoliv, Inc.’s
foreign ownership, control, and
domination. Based on the information
provided above, the NRC finds that
Aerotest is in violation of Section 104d.
of the AEA and 10 CFR 50.38, which
prohibit foreign ownership, control, or
domination of licenses issued under 10
CFR part 50.
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Aerotest has been out of compliance
with Section 104d. of the AEA and 10
CFR 50.38 since Autoliv, Inc. took
control in 2000. Despite the licensee’s
and the NRC’s efforts, Aerotest
continues to be out of compliance. The
NRC cannot renew the Aerotest license
because Aerotest is not authorized to
hold a 10 CFR part 50 license.
Therefore, the NRC staff is denying
the license renewal application and is
hereby prohibiting the licensee from
operating the ARRR. In addition,
Aerotest must begin the process of
decommissioning the ARRR.
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IV.
Accordingly, pursuant to Sections
104c., 104d., 161b., 161i., 161o., 182,
and 186 of the AEA and the
Commission’s regulations in 10 CFR
2.202, ‘‘Orders,’’ and 10 CFR Part 50,
it is hereby ordered that:
I. Facility Operating License R–98 is
Modified as Follows:
a. The licensee is prohibited from
operating the ARRR. The licensee
shall maintain the ARRR in a
shutdown condition.
b. Facility Operating License No. R–
98 is amended to possession-only
status as follows:
1. Pursuant to Section 104c of the
AEA and 10 CFR Part 50, ‘‘Domestic
Licensing of Production and
Utilization Facilities,’’ the licensee
shall possess, but neither use nor
operate, the reactor at the
designated location in San Ramon,
California, in accordance with the
procedures and limitations set forth
in its license;
2. Pursuant to the AEA and 10 CFR
Part 70, ‘‘Domestic Licensing of
Special Nuclear Material,’’ the
licensee shall possess, but neither
receive nor use, up to 5.0 kilograms
of contained uranium 235 in
connection with possession of the
reactor; and
3. Pursuant to the AEA and 10 CFR
Part 30, ‘‘Rules of General
Applicability to Domestic Licensing
of Byproduct Material,’’ the licensee
shall:
i. Possess, but neither receive nor use,
a 2 curie americium-beryllium
neutron startup source; and
ii. possess, but neither use or separate,
byproduct material produced by
past operation of the reactor.
II. Within 30 days of the date of this
order, the licensee shall submit to
the NRC:
a. An updated decommissioning plan
for the ARRR that contains the
elements required by 10 CFR
50.82(b), including:
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1. A decommissioning funding plan,
and
2. A fuel management plan that
describes the means for funding the
management of the fuel until
permanent disposal.
b. If necessary, a license amendment
request to modify the technical
specifications to reflect the
possession-only license conditions.
V.
In accordance with 10 CFR 2.202, the
licensee must, and any other person
adversely affected by this Order may,
submit an answer to this Order within
20 days of its publication in the Federal
Register (FR). In addition, the licensee
and any other person adversely affected
by this Order may request a hearing on
this Order within 20 days of its
publication in the FR. Where good cause
is shown, consideration will be given to
extending the time to answer or request
a hearing. A request for extension of
time must be directed to the Director of
the Office of Enforcement, U.S. Nuclear
Regulatory Commission, Washington,
DC 20555–0001 and include a statement
of good cause for the extension.
VI.
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 before
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 (72 FR 49139; August
28, 2007). 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 an exemption in
accordance with the procedures
described below.
To comply with the procedural
requirements of E-Filing, at least 10
days before the filing deadline, the
participant should contact the Office of
the Secretary by email at
hearing.docket@nrc.gov, or by telephone
at 301–415–1677, to (1) request a digital
identification (ID) certificate, which
allows the participant (or its counsel or
representative) to digitally sign
documents and access the E-Submittal
server for any proceeding in which it is
participating, and (2) advise the
Secretary that the participant will be
submitting a request or petition for
hearing (even in instances in which the
participant, or its counsel or
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representative, already holds an NRCissued digital ID certificate). Based on
this information, the Secretary will
establish an electronic docket for the
hearing in this proceeding if the
Secretary has not already established an
electronic docket.
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. System
requirements for accessing the ESubmittal server are detailed in the
NRC’s ‘‘Guidance for Electronic
Submission,’’ which is available on the
agency’s public Web site at https://
www.nrc.gov/site-help/electronic-subref-mat.html. Participants may attempt
to use other software not listed on the
Web site, but should note that the NRC’s
E-Filing system does not support
unlisted software, and the NRC Meta
System Help Desk will not be able to
offer assistance in using unlisted
software.
If a participant is electronically
submitting a document to the NRC in
accordance with the E-Filing rule, the
participant must file the document
using the NRC’s online Web-based
submission form. To serve documents
through the Electronic Information
Exchange System, users will be required
to install a Web browser plug-in from
the NRC Web site. Further information
on the Web-based submission form,
including the installation of the Web
browser plug-in, is available on the
NRC’s public Web site at https://
www.nrc.gov/site-help/electronic-subref-mat.html.
Once a participant has obtained a
digital ID certificate and a docket has
been created, the participant 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/esubmittals.html. A filing is considered
complete at the time the documents are
submitted through the NRC’s E-Filing
system. To be timely, an electronic
filing must be submitted to the E-Filing
system no later than 11:59 p.m. eastern
time on the due date. Upon receipt of a
transmission, the E-Filing system timestamps the document and sends the
submitter an email notice confirming
receipt of the document. The E-Filing
system also distributes an email notice
that provides access to the document to
the NRC’s Office of the General Counsel
and any others who have advised the
Office of the Secretary that they wish to
participate in the proceeding, so that the
filer need not serve the documents on
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Federal Register / Vol. 78, No. 148 / Thursday, August 1, 2013 / Notices
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 or
petition to intervene is filed so that they
can obtain access to the document
through the E-Filing system.
A person filing electronically using
the agency’s adjudicatory E-Filing
system may seek assistance by
contacting the NRC Meta System Help
Desk through the ‘‘Contact Us’’ link on
the NRC Web site at https://www.nrc.gov/
site-help/e-submittals.html, by email to
MSHD.Resource@nrc.gov, or by a tollfree call to 866–672–7640. The NRC
Meta System Help Desk is available
between 8 a.m. and 8 p.m. Eastern Time,
Monday through Friday, excluding
government holidays.
Participants who believe that they
have a good cause for not submitting
documents electronically must file an
exemption request, in accordance with
10 CFR 2.302(g), with their initial paper
filing requesting authorization to
continue to submit documents in paper
format. Such filings must be submitted
by: (1) First class mail addressed to the
Office of the Secretary of the
Commission, U.S. Nuclear Regulatory
Commission, Washington, DC 20555–
0001, and marked ‘‘Attention:
Rulemaking and Adjudications Staff;’’
or (2) courier, express mail, or expedited
delivery service addressed to the Office
of the Secretary, 16th Floor, One White
Flint North, 11555 Rockville Pike,
Rockville, MD 20852, and marked
‘‘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. A presiding officer, having
granted an exemption request from
using E-Filing, may require a participant
or party to use E-Filing if the presiding
officer subsequently determines that the
reason for granting the exemption from
use of E-Filing no longer exists.
Documents submitted in adjudicatory
proceedings will appear in NRC’s
electronic hearing docket, which is
available to the public at https://
ehd1.nrc.gov/ehd, unless excluded
pursuant to an order of the Commission
or the presiding officer. Participants are
requested not to include private
personal information such as social
security numbers, home addresses, or
home phone numbers in their filings,
unless an NRC regulation or other law
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requires submission of such
information. 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.
If a person other than the licensee
requests a hearing, that person shall set
forth with particularity the manner in
which his or her interest is adversely
affected by this Order and shall address
the criteria set forth in 10 CFR 2.309(d).
If a hearing is requested by a licensee or
a person whose interest is adversely
affected, the Commission will issue an
Order designating the time and place of
any hearings. If a hearing is held, the
issue to be considered at such hearing
shall be whether this Order should be
sustained. In the absence of any request
for hearing, or any written approval of
an extension of time in which to request
a hearing, the provisions specified in
Section IV above shall be final 20 days
from the date this Order is published in
the FR without further order or
proceedings. If an extension of time for
requesting a hearing has been approved,
the provisions specified in Section IV
shall be final when the extension
expires if a hearing request has not been
received.
It is so ordered.
Dated at Rockville, Maryland, this 24th day
of July 2013.
For the Nuclear Regulatory Commission.
Roy P. Zimmerman,
Director, Office of Enforcement.
[FR Doc. 2013–18516 Filed 7–31–13; 8:45 am]
BILLING CODE 7590–01–P
NUCLEAR REGULATORY
COMMISSION
[NRC–2013–0170]
Status of the Office of New Reactors’
Implementation of Electronic
Distribution of Advanced Reactor
Correspondence
Nuclear Regulatory
Commission.
ACTION: Implementation of electronic
distribution of advanced reactor
correspondence; issuance.
AGENCY:
The U.S. Nuclear Regulatory
Commission (NRC) is issuing this
Federal Register notice to inform the
public that, in the future, publicly
available correspondence originating
from the Division of Advanced Reactors
and Rulemaking (DARR) in the Office of
New Reactors (NRO) will be transmitted
SUMMARY:
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46621
only by a computer-based email
distribution system listserv to
addressees and subscribers. This change
does not affect the availability of official
agency records in the NRC’s
Agencywide Documents Access and
Management System (ADAMS), which
may be accessed through NRC’s Web
page at www.nrc.gov.
ADDRESSES: Please refer to Docket ID
NRC–2013–0170 when contacting the
NRC about the availability of
information regarding this document.
You may access information related to
this document, which the NRC
possesses and is publicly available,
using any of the following methods:
• Federal Rulemaking Web site: Go to
https://www.regulations.gov and search
for Docket ID NRC–2013–0170. Address
questions about NRC dockets to Carol
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E:\FR\FM\01AUN1.SGM
01AUN1
Agencies
[Federal Register Volume 78, Number 148 (Thursday, August 1, 2013)]
[Notices]
[Pages 46618-46621]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-18516]
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NUCLEAR REGULATORY COMMISSION
[Docket No. 50-228; NRC-2012-0286; License No. R-98; EA-13-097]
Order Prohibiting Operation of Aerotest Radiography and Research
Reactor
I.
Aerotest Operations, Inc. (Aerotest, the licensee), is the holder
of Facility Operating License No. R-98, issued on
[[Page 46619]]
July 2, 1965, by the U.S. Atomic Energy Commission, now the U.S.
Nuclear Regulatory Commission (NRC). Facility Operating License No. R-
98 was issued pursuant to Section 104c. of the Atomic Energy Act of
1954, as amended (AEA), and part 50 of Title 10 of the Code of Federal
Regulations (10 CFR), ``Domestic Licensing of Production and
Utilization Facilities.'' The license authorizes the operation of the
Aerotest Radiography and Research Reactor (ARRR) in accordance with the
conditions specified therein. The ARRR is located on the licensee's
site in San Ramon, California. Autoliv, Inc. is the ultimate corporate
parent of Aerotest and, therefore, has ultimate control of Aerotest's
license.
II.
Section 104d., ``Medical Therapy and Research and Development,'' of
the AEA and 10 CFR 50.38, ``Ineligibility of Certain Applicants,''
prohibit the issuance of any license for a utilization and production
facility useful in the conduct of research and development ``to any
corporation or other entity if the Commission knows or has reason to
believe it is owned, controlled, or dominated by an alien, a foreign
corporation, or a foreign government.''
Autoliv, Inc. is headquartered in Stockholm, Sweden. The majority
of Autoliv, Inc.'s board of directors and executive officers are non-
U.S. citizens. The majority of Autoliv, Inc.'s outstanding stock is
held by non-U.S. citizens. Thus, Autoliv, Inc. is a foreign corporation
for the purposes of the AEA, and its ownership of ARRR is prohibited.
Nonetheless in 2000, Autoliv, Inc. acquired Aerotest through
intermediate acquisition of several wholly owned companies. As a
result, Autoliv, Inc. now has indirect control of the Aerotest license.
Although Autoliv, Inc.'s acquisition of Aerotest constituted an
indirect transfer of control of the Aerotest license, this transfer was
not the subject of an application for prior consent of the NRC as
required by 10 CFR 50.80, ``Transfer of Licenses,'' and, therefore, the
transfer was neither reviewed nor approved by the NRC.
On October 7, 2003 (Agencywide Documents Access and Management
System (ADAMS) Accession No. ML040430495), the NRC staff issued a
letter to Autoliv instructing Autoliv to develop a full divestiture
plan or partial divestiture and negation action plan and to report
progress on the plan every six months thereafter. Autoliv developed a
plan but was not able to divest Aerotest of foreign ownership and
control.
By letter dated February 28, 2005, as supplemented by letters dated
May 5, 2008; March 9, July 21, and September 4, 2009; and January 7,
2010 (ADAMS Accession Nos. ML13120A434, ML103370137, ML120900629,
ML092080163, ML092600267, ML100140375, respectively), Aerotest applied
for renewal of the ARRR operating license. The licensee has been
operating under the timely renewal provisions of 10 CFR 2.109, ``Effect
of Timely Renewal Application,'' since the expiration of the license on
April 16, 2005. Upon review of the renewal application, the NRC staff
noted that Aerotest still did not satisfy the requirements of Section
104d. of the AEA and 10 CFR 50.38. On July 9, 2009 (ADAMS Accession No.
ML090830578), the NRC issued a proposed denial of the license renewal
because of the foreign ownership issue.
On July 21, 2009 (ADAMS Accession No. ML092080163), Aerotest
notified the NRC that Autoliv ASP, Inc. (which is wholly owned by
Autoliv, Inc.) and X-Ray Industries, Inc., had entered into a non-
binding letter of intent for the sale of the ARRR to X-Ray Industries,
Inc. On January 7, 2010, as amended by letters dated January 19,
February 2, March 23, and April 1, 2010 (ADAMS Accession Nos.
ML100140375, ML100490068, ML100880295, ML100880338, ML100980153,
respectively), the NRC received a license transfer application from
Autoliv and X-Ray Industries. An NRC Order, dated July 6, 2010 (ADAMS
Accession No. ML101380228), approved the license transfer and provided
60 days (extended to October 15, 2010, through letter dated September
13, 2010 (ADAMS Accession No. ML102460245)), for the transfer to be
consummated. The Order expired without the transfer of the license.
On October 15, 2010, Aerotest voluntarily ceased day-to-day
operations (reactor operation continued for surveillances). On February
26, 2011 (ADAMS Accession No. ML103640183), the NRC responded to a
January 7, 2011 (ADAMS Accession No. ML1101180463), letter from
Aerotest by issuing Confirmatory Action Letter (CAL) No. NRR-2011-001
to Aerotest. The CAL confirmed actions Aerotest would take to prepare a
decommissioning plan, manage and provide funding for the disposition of
fuel, and file an application for a possession-only license amendment.
Aerotest did not submit a decommissioning plan and possession-only
license amendment application as discussed in the CAL. Consequently, on
January 18, 2012 (ADAMS Accession No. ML120200203), the NRC held a
public meeting with Aerotest to discuss the status of the
decommissioning plan and possession-only license amendment application.
At the conclusion of the meeting, Aerotest agreed to provide the NRC
with milestones and deliverables as part of a CAL status report due on
January 24, 2012.
In a letter dated January 24, 2012 (ADAMS Accession No.
ML12027A010), Aerotest stated that by March 31, 2012, it would inform
the NRC that either negotiations for acquisition of the reactor had
ended or negotiations had resulted in a selected buyer. In a letter
dated March 30, 2012 (ADAMS Accession No. ML12093A399), Aerotest
informed the NRC that it had selected a buyer, Nuclear Labyrinth, LLC,
and that a license transfer application would be submitted by May 30,
2012. Aerotest and Nuclear Labyrinth, LLC, submitted a license transfer
application on May 30, 2012 (ADAMS Accession Nos. ML12152A233 and
ML12180A384). The NRC accepted the application for review on August 14,
2012 (ADAMS Accession No. ML12213A486), after the applicants submitted
supplemental information on July 19, 2012 (ADAMS Accession No.
ML122021201). The NRC sent requests for additional information to the
applicants on two occasions and reviewed the applicants' responses,
dated October 15, 2012, and January 10, 2013 (ADAMS Accession Nos.
ML12291A508 and ML13015A395). A public meeting was held on December 19,
2012 (ADAMS Accession No. ML13018A003), because the October 15, 2012,
submission was insufficient. During the meeting, the NRC staff
reiterated the financial information required for NRC approval of the
indirect transfer.
III.
The NRC staff has completed its safety evaluation (ADAMS Accession
No. ML13129A001) of the license transfer request. The NRC staff has
concluded that it does not have reasonable assurance, as required by 10
CFR 50.33, ``Contents of Applications; General Information,'' that
Nuclear Labyrinth, LLC, or Aerotest Operations, Inc., would have
sufficient funding to conduct the activities authorized by the ARRR
license if the license were transferred. Consequently, the NRC staff is
denying the license transfer request. Therefore, the ARRR remains under
Autoliv, Inc.'s foreign ownership, control, and domination. Based on
the information provided above, the NRC finds that Aerotest is in
violation of Section 104d. of the AEA and 10 CFR 50.38, which prohibit
foreign ownership, control, or domination of licenses issued under 10
CFR part 50.
[[Page 46620]]
Aerotest has been out of compliance with Section 104d. of the AEA
and 10 CFR 50.38 since Autoliv, Inc. took control in 2000. Despite the
licensee's and the NRC's efforts, Aerotest continues to be out of
compliance. The NRC cannot renew the Aerotest license because Aerotest
is not authorized to hold a 10 CFR part 50 license.
Therefore, the NRC staff is denying the license renewal application
and is hereby prohibiting the licensee from operating the ARRR. In
addition, Aerotest must begin the process of decommissioning the ARRR.
IV.
Accordingly, pursuant to Sections 104c., 104d., 161b., 161i.,
161o., 182, and 186 of the AEA and the Commission's regulations in 10
CFR 2.202, ``Orders,'' and 10 CFR Part 50,
it is hereby ordered that:
I. Facility Operating License R-98 is Modified as Follows:
a. The licensee is prohibited from operating the ARRR. The licensee
shall maintain the ARRR in a shutdown condition.
b. Facility Operating License No. R-98 is amended to possession-
only status as follows:
1. Pursuant to Section 104c of the AEA and 10 CFR Part 50,
``Domestic Licensing of Production and Utilization Facilities,'' the
licensee shall possess, but neither use nor operate, the reactor at the
designated location in San Ramon, California, in accordance with the
procedures and limitations set forth in its license;
2. Pursuant to the AEA and 10 CFR Part 70, ``Domestic Licensing of
Special Nuclear Material,'' the licensee shall possess, but neither
receive nor use, up to 5.0 kilograms of contained uranium 235 in
connection with possession of the reactor; and
3. Pursuant to the AEA and 10 CFR Part 30, ``Rules of General
Applicability to Domestic Licensing of Byproduct Material,'' the
licensee shall:
i. Possess, but neither receive nor use, a 2 curie americium-
beryllium neutron startup source; and
ii. possess, but neither use or separate, byproduct material
produced by past operation of the reactor.
II. Within 30 days of the date of this order, the licensee shall submit
to the NRC:
a. An updated decommissioning plan for the ARRR that contains the
elements required by 10 CFR 50.82(b), including:
1. A decommissioning funding plan, and
2. A fuel management plan that describes the means for funding the
management of the fuel until permanent disposal.
b. If necessary, a license amendment request to modify the
technical specifications to reflect the possession-only license
conditions.
V.
In accordance with 10 CFR 2.202, the licensee must, and any other
person adversely affected by this Order may, submit an answer to this
Order within 20 days of its publication in the Federal Register (FR).
In addition, the licensee and any other person adversely affected by
this Order may request a hearing on this Order within 20 days of its
publication in the FR. Where good cause is shown, consideration will be
given to extending the time to answer or request a hearing. A request
for extension of time must be directed to the Director of the Office of
Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555-
0001 and include a statement of good cause for the extension.
VI.
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 before 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 (72 FR 49139;
August 28, 2007). 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 an exemption in
accordance with the procedures described below.
To comply with the procedural requirements of E-Filing, at least 10
days before the filing deadline, the participant should contact the
Office of the Secretary by email at hearing.docket@nrc.gov, or by
telephone at 301-415-1677, to (1) request a digital identification (ID)
certificate, which allows the participant (or its counsel or
representative) to digitally sign documents and access the E-Submittal
server for any proceeding in which it is participating, and (2) advise
the Secretary that the participant will be submitting a request or
petition for hearing (even in instances in which the participant, or
its counsel or representative, already holds an NRC-issued digital ID
certificate). Based on this information, the Secretary will establish
an electronic docket for the hearing in this proceeding if the
Secretary has not already established an electronic docket.
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. System requirements for accessing
the E-Submittal server are detailed in the NRC's ``Guidance for
Electronic Submission,'' which is available on the agency's public Web
site at https://www.nrc.gov/site-help/electronic-sub-ref-mat.html.
Participants may attempt to use other software not listed on the Web
site, but should note that the NRC's E-Filing system does not support
unlisted software, and the NRC Meta System Help Desk will not be able
to offer assistance in using unlisted software.
If a participant is electronically submitting a document to the NRC
in accordance with the E-Filing rule, the participant must file the
document using the NRC's online Web-based submission form. To serve
documents through the Electronic Information Exchange System, users
will be required to install a Web browser plug-in from the NRC Web
site. Further information on the Web-based submission form, including
the installation of the Web browser plug-in, is available on the NRC's
public Web site at https://www.nrc.gov/site-help/electronic-sub-ref-mat.html.
Once a participant has obtained a digital ID certificate and a
docket has been created, the participant 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
documents are submitted through the NRC's E-Filing system. To be
timely, an electronic filing must be submitted to the E-Filing system
no later than 11:59 p.m. eastern time on the due date. Upon receipt of
a transmission, the E-Filing system time-stamps the document and sends
the submitter an email notice confirming receipt of the document. The
E-Filing system also distributes an email notice that provides access
to the document to the NRC's Office of the General Counsel and any
others who have advised the Office of the Secretary that they wish to
participate in the proceeding, so that the filer need not serve the
documents on
[[Page 46621]]
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 or petition
to intervene is filed so that they can obtain access to the document
through the E-Filing system.
A person filing electronically using the agency's adjudicatory E-
Filing system may seek assistance by contacting the NRC Meta System
Help Desk through the ``Contact Us'' link on the NRC Web site at https://www.nrc.gov/site-help/e-submittals.html, by email to
MSHD.Resource@nrc.gov, or by a toll-free call to 866-672-7640. The NRC
Meta System Help Desk is available between 8 a.m. and 8 p.m. Eastern
Time, Monday through Friday, excluding government holidays.
Participants who believe that they have a good cause for not
submitting documents electronically must file an exemption request, in
accordance with 10 CFR 2.302(g), with their initial paper filing
requesting authorization to continue to submit documents in paper
format. Such filings must be submitted by: (1) First class mail
addressed to the Office of the Secretary of the Commission, U.S.
Nuclear Regulatory Commission, Washington, DC 20555-0001, and marked
``Attention: Rulemaking and Adjudications Staff;'' or (2) courier,
express mail, or expedited delivery service addressed to the Office of
the Secretary, 16th Floor, One White Flint North, 11555 Rockville Pike,
Rockville, MD 20852, and marked ``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.
A presiding officer, having granted an exemption request from using E-
Filing, may require a participant or party to use E-Filing if the
presiding officer subsequently determines that the reason for granting
the exemption from use of E-Filing no longer exists.
Documents submitted in adjudicatory proceedings will appear in
NRC's electronic hearing docket, which is available to the public at
https://ehd1.nrc.gov/ehd, unless excluded pursuant to an order of the
Commission or the presiding officer. Participants are requested not to
include private personal information such as social security numbers,
home addresses, or home phone numbers in their filings, unless an NRC
regulation or other law requires submission of such information. 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.
If a person other than the licensee requests a hearing, that person
shall set forth with particularity the manner in which his or her
interest is adversely affected by this Order and shall address the
criteria set forth in 10 CFR 2.309(d). If a hearing is requested by a
licensee or a person whose interest is adversely affected, the
Commission will issue an Order designating the time and place of any
hearings. If a hearing is held, the issue to be considered at such
hearing shall be whether this Order should be sustained. In the absence
of any request for hearing, or any written approval of an extension of
time in which to request a hearing, the provisions specified in Section
IV above shall be final 20 days from the date this Order is published
in the FR without further order or proceedings. If an extension of time
for requesting a hearing has been approved, the provisions specified in
Section IV shall be final when the extension expires if a hearing
request has not been received.
It is so ordered.
Dated at Rockville, Maryland, this 24th day of July 2013.
For the Nuclear Regulatory Commission.
Roy P. Zimmerman,
Director, Office of Enforcement.
[FR Doc. 2013-18516 Filed 7-31-13; 8:45 am]
BILLING CODE 7590-01-P