Proposed Procedures for Conducting Hearings on Whether Acceptance Criteria in Combined Licenses Are Met, 21958-21974 [2014-08917]

Agencies

• NUCLEAR REGULATORY COMMISSION

[Federal Register Volume 79, Number 75 (Friday, April 18, 2014)]
[Notices]
[Pages 21958-21974]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-08917]


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NUCLEAR REGULATORY COMMISSION

[NRC-2014-0077]


Proposed Procedures for Conducting Hearings on Whether Acceptance 
Criteria in Combined Licenses Are Met

AGENCY: Nuclear Regulatory Commission.

ACTION: Proposed ITAAC hearing procedures; public meeting; and request 
for comments.

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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) is developing 
generic procedures for conducting hearings on whether acceptance 
criteria in combined licenses are met. These acceptance criteria are 
part of the inspections, tests, analyses, and acceptance criteria 
(ITAAC) included in the combined license for a nuclear reactor. Reactor 
operation may commence only if and after the NRC finds that these 
acceptance criteria are met. The proposed generic hearing procedures 
are being issued for public comment. After these generic hearing 
procedures are finalized, the Commission will use them (with 
appropriate modifications) in case-specific orders to govern hearings 
on conformance with the acceptance criteria. The NRC intends to hold a 
public meeting during the comment period to discuss the proposed 
procedures.

DATES: Submit comments by July 2, 2014. Comments received after this 
date will be considered if it is practical to do so, but it is unlikely 
that consideration of late comments will be practical because of the 
need to finalize the generic procedures on an expedited basis to 
support preparation for upcoming hearings for reactors currently under 
construction.

[[Page 21959]]

    The NRC intends to hold a public meeting on May 21, 2014, to 
discuss the proposed procedures. This public meeting will be for 
information exchange purposes only; no comments will be received at the 
public meeting. Any stakeholders wishing to comment on the procedures 
must do so by the means described in this notice.

ADDRESSES: You may submit comments by any of the following methods:
     Federal Rulemaking Web site: Go to https://www.regulations.gov and search for Docket ID NRC-2014-0077. Address 
questions about NRC dockets to Carol Gallagher; telephone: 301-287-
3422; email: Carol.Gallagher@nrc.gov. For questions about the 
procedures, contact the individual listed in the FOR FURTHER 
INFORMATION CONTACT section of this document.
     Mail comments to: Cindy Bladey, Chief, Rules, 
Announcements, and Directives Branch (RADB), Office of Administration, 
Mail Stop: 3WFN-06-44M, U.S. Nuclear Regulatory Commission, Washington, 
DC 20555-0001.
    For additional direction on accessing information and submitting 
comments, see ``Accessing Information and Submitting Comments'' in the 
SUPPLEMENTARY INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: Michael A. Spencer, Office of the 
General Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 
20555-0001, telephone 301-415-4073, email: Michael.Spencer@nrc.gov.

SUPPLEMENTARY INFORMATION:

I. Accessing Information and Submitting Comments

A. Accessing Information

    Please refer to Docket ID NRC-2014-0077 when contacting the NRC 
about the availability of information regarding this document. You may 
access publicly-available information related to this document by any 
of the following methods:
     Federal Rulemaking Web site: Go to https://www.regulations.gov and search for Docket ID NRC-2014-0077.
     NRC's Agencywide Documents Access and Management System 
(ADAMS): You may access publicly available documents online in the 
ADAMS Public Documents collection at https://www.nrc.gov/reading-rm/adams.html. To begin the search, select ``ADAMS Public Documents'' and 
then select ``Begin Web-based ADAMS Search.'' For problems with ADAMS, 
please contact the NRC's Public Document Room (PDR) reference staff at 
1-800-397-4209, 301-415-4737, or by email to pdr.resource@nrc.gov. For 
the convenience of the reader, instructions about accessing documents 
referenced in this document are provided in the ``Availability of 
Documents'' section.
     NRC's PDR: You may examine and purchase copies of public 
documents at the NRC's PDR, Room O1-F21, One White Flint North, 11555 
Rockville Pike, Rockville, Maryland 20852.

B. Submitting Comments

    Please include Docket ID NRC-2014-0077 in the subject line of your 
comment submission, in order to ensure that the NRC is able to make 
your comment submission available to the public in this docket.
    The NRC cautions you not to include identifying or contact 
information that you do not want to be publicly disclosed in your 
comment submission. The NRC will post all comment submissions at https://www.regulations.gov as well as enter the comment submissions into 
ADAMS. The NRC does not routinely edit comment submissions to remove 
identifying or contact information.
    If you are requesting or aggregating comments from other persons 
for submission to the NRC, then you should inform those persons not to 
include identifying or contact information that they do not want to be 
publicly disclosed in their comment submission. Your request should 
state that the NRC does not routinely edit comment submissions to 
remove such information before making the comment submissions available 
to the public or entering the comment submissions into ADAMS.

II. Introduction

    The NRC promulgated Part 52 of Title 10 of the Code of Federal 
Regulations (CFR) on April 18, 1989 (54 FR 15386) to reform the 
licensing process for future nuclear power plant applicants. The rule 
added alternative licensing processes in 10 CFR Part 52 for early site 
permits (ESPs), standard design certifications, and combined licenses 
(COLs). These were additions to the two-step licensing process that 
already existed in 10 CFR Part 50. The processes in 10 CFR Part 52 are 
intended to facilitate early resolution of safety and environmental 
issues and to enhance the safety and reliability of nuclear power 
plants through standardization. The centerpiece of 10 CFR Part 52 is 
the COL, which resolves the safety and environmental issues associated 
with construction and operation before construction begins. Applicants 
for a COL are able to reference other NRC approvals (e.g., ESPs and 
design certifications) that resolve a number of safety and 
environmental issues that would otherwise need to be resolved in the 
COL proceeding.
    After the promulgation of 10 CFR Part 52 in 1989, the Energy Policy 
Act of 1992 (EPAct), Public Law 102-486, added several provisions to 
the Atomic Energy Act of 1954, as amended (AEA), regarding the COL 
process, including provisions on ITAAC. The inclusion of ITAAC in the 
COL is governed by Section 185b. of the AEA, and hearings on 
conformance with the acceptance criteria in the ITAAC are governed by 
Section 189a.(1)(B) of the AEA. On December 23, 1992 (57 FR 60975), the 
Commission revised 10 CFR Part 52 to conform to the EPAct. Further 
additions and revisions to the regulations governing hearings on 
conformance with the acceptance criteria were made in the final rule 
entitled ``Licenses, Certifications, and Approvals for Nuclear Power 
Plants'' (2007 Part 52 Rule) (72 FR 49352; August 28, 2007), and in the 
final rule entitled ``Requirements for Maintenance of Inspections, 
Tests, Analyses, and Acceptance Criteria'' (ITAAC Maintenance Rule) (77 
FR 51880; August 28, 2012).
    The ITAAC are an essential feature of Part 52. To issue a COL, the 
NRC must make a predictive finding that the facility will be 
constructed and will be operated in accordance with the license, the 
AEA, and NRC rules and regulations. The ITAAC are used to ensure that, 
prior to facility operation, the facility has been constructed and will 
be operated in accordance with the license, the AEA, and NRC rules and 
regulations. The ITAAC are verification requirements that include both 
the means of verification (the inspections, tests, or analyses) and the 
standards that must be satisfied (the acceptance criteria). Facility 
operation cannot commence until the NRC finds, under 10 CFR 52.103(g), 
that all acceptance criteria in the COL are met. Consistent with the 
NRC's historical understanding, facility operation begins with the 
loading of fuel into the reactor. After the NRC finds that the 
acceptance criteria are met, 10 CFR 52.103(h) provides that the ITAAC 
cease to be requirements either for the licensee or for license 
renewal. All of the ITAAC for a facility, including those reviewed and 
approved as part of an ESP or a design certification, are included in 
an appendix to the COL.\1\
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    \1\ See, e.g., Vogtle Unit 3 Combined License, Appendix C (ADAMS 
Accession No. ML112991102). There are 875 ITAAC in the Vogtle COL.

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[[Page 21960]]

    As the licensee completes the construction of structures, systems, 
and components (SSCs) subject to ITAAC, the licensee will perform the 
inspections, tests, and analyses for these SSCs and document the 
results onsite. NRC inspectors will inspect a sample of the ITAAC to 
ensure that the ITAAC are successfully completed.\2\ This sample is 
chosen using a comprehensive selection process to provide confidence 
that both the ITAAC that have been directly inspected and the ITAAC 
that have not been directly inspected are successfully completed.
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    \2\ In addition to ITAAC for SSCs, there are ITAAC related to 
the emergency preparedness program and physical security hardware. 
The NRC will inspect the performance of all emergency preparedness 
program and physical security hardware ITAAC.
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    For every ITAAC, the licensee is required by 10 CFR 52.99(c)(1) to 
submit an ITAAC closure notification to the NRC explaining the 
licensee's basis for concluding that the inspections, tests, and 
analyses have been performed and that the acceptance criteria are met. 
These ITAAC closure notifications are submitted throughout construction 
as ITAAC are completed. Licensees are expected to ``maintain'' the 
successful completion of ITAAC after the submission of an ITAAC closure 
notification. If an event subsequent to the submission of an ITAAC 
closure notification materially alters the basis for determining that 
the inspections, tests, and analyses were successfully performed or 
that the acceptance criteria are met, then the licensee is required by 
10 CFR 52.99(c)(2) to submit an ITAAC post-closure notification 
documenting its successful resolution of the issue. The licensee must 
also notify the NRC when all ITAAC are complete as required by 10 CFR 
52.99(c)(4). These notifications, together with the results of the 
NRC's inspection process, serve as the basis for the NRC's 10 CFR 
52.103(g) finding regarding whether the acceptance criteria in the COL 
are met.
    One other required notification, the uncompleted ITAAC 
notification, must be submitted at least 225 days before scheduled 
initial fuel load and must describe the licensee's plans to complete 
the ITAAC that have not yet been completed. 10 CFR 52.99(c)(3). An 
important purpose served by this notification is to provide sufficient 
information to members of the public to allow them a meaningful 
opportunity to request a hearing and submit contentions on uncompleted 
ITAAC within the required timeframes. When the uncompleted ITAAC are 
later completed, the licensee must submit an ITAAC closure notification 
pursuant to 10 CFR 52.99(c)(1).
    As the Commission stated in the ITAAC Maintenance Rule (77 FR 
51887), the notifications required by 10 CFR 52.99(c) serve the dual 
purposes of ensuring (1) that the NRC has sufficient information to 
complete all of the activities necessary for it to find that the 
acceptance criteria are met, and (2) that interested persons will have 
access to information on both completed and uncompleted ITAAC 
sufficient to address the AEA threshold for requesting a hearing under 
Section 189a.(1)(B) on conformance with the acceptance criteria.
    The NRC regulations that directly relate to the ITAAC hearing 
process are in 10 CFR 2.105, 2.309, 2.310, 2.340, 2.341, 51.108, and 
52.103. Because 10 CFR 52.103 establishes the most important 
requirements regarding operation under a combined license, including 
basic aspects of the associated hearing process, NRC regulations often 
refer to the ITAAC hearing process as a ``proceeding under 10 CFR 
52.103.'' Additional regulations governing the ITAAC hearing process 
are in the design certification rules, which are included as appendices 
to 10 CFR Part 52, for example, ``Design Certification Rule for the 
AP1000 Design,'' 10 CFR Part 52, Appendix D, Paragraphs VI.B, 
VIII.B.5.g, and VIII.C.5. In addition, the Commission announced several 
policy decisions regarding the conduct of ITAAC hearings in its final 
policy statement entitled ``Conduct of New Reactor Licensing 
Proceedings'' (2008 Policy Statement) (73 FR 20963; April 17, 2008).
    While NRC regulations address certain aspects of the ITAAC hearing 
process, they do not provide detailed procedures for the conduct of an 
ITAAC hearing. As provided by 10 CFR 2.310(j), proceedings on a 
Commission finding under 10 CFR 52.103(c) and (g) shall be conducted in 
accordance with the procedures designated by the Commission in each 
proceeding. The use of case-specific orders to impose case-specific 
hearing procedures reflects the flexibility afforded to the NRC by 
Section 189a.(1)(B)(iv) of the AEA, which provides the NRC with the 
discretion to determine the appropriate procedures for an ITAAC 
hearing, whether formal or informal. A case-specific approach has the 
advantage of allowing the NRC to tailor the procedures to the specific 
matters in controversy to conduct the proceeding more efficiently. In 
addition, the NRC can more swiftly implement lessons learned from the 
first ITAAC hearings to future proceedings. This approach is 
particularly beneficial given that this is a first-of-a-kind hearing 
process.
    The NRC recognizes, however, that the predictability and efficiency 
of the ITAAC hearing process would be greatly enhanced by the 
development, to the extent possible, of generalized procedures that can 
be quickly and easily adapted to the specific features of individual 
proceedings. The Commission, in its July 19, 2013 staff requirements 
memorandum (SRM) on SECY-13-0033, ``Allowing Interim Operation Under 
Title 10 of the Code of Federal Regulations Section 52.103,'' (ADAMS 
Accession Nos. ML13200A115 and ML12289A928) directed the NRC staff, the 
Office of the General Counsel (OGC), and the Office of Commission 
Appellate Adjudication (OCAA) to develop options for ITAAC hearing 
formats for Commission review and approval. The Commission further 
directed that the ITAAC hearing procedures ``be developed, deliberated, 
and resolved within the next 12 to 18 months.'' Pursuant to this 
direction, the NRC staff, OGC, and OCAA (together, ``the Staff'') have 
jointly developed the generic ITAAC hearing procedures that are 
described and referenced in this notice. After considering the comments 
made on these procedures, the Staff will modify the general procedures 
as appropriate and submit the modified procedures, along with responses 
to comments on the proposed procedures, to the Commission for review 
and approval later in 2014.

III. Public Meeting

    In addition to the comment request period, the NRC intends to hold 
a public meeting on May 21, 2014, to discuss the proposed procedures. 
This public meeting will be for information exchange purposes only; no 
comments will be received at the public meeting. Any stakeholders 
wishing to comment on the procedures must do so by the means described 
in this notice. The public meeting will be held at the NRC's 
headquarters in Rockville, MD. Further information regarding the 
specific time and location of the meeting will be included in a public 
meeting notice to be issued in the future. This public meeting notice 
will be made available electronically in ADAMS and posted on the NRC's 
Public Meeting Schedule Web site at https://www.nrc.gov/public-involve/public-meetings/index.cfm. The agenda for the public meeting will be 
noticed no fewer than 10 days prior to the meeting on the Public 
Meeting Schedule Web site. Any meeting updates or changes will be made 
available on this Web site. Information regarding topics to be 
discussed,

[[Page 21961]]

changes to the agenda, whether the meeting has been cancelled or 
rescheduled, and the time allotted for public comments can be obtained 
from the Public Meeting Schedule Web site.

IV. Existing Law and Policy Governing ITAAC Hearings

    In developing ITAAC hearing procedures, the Staff has implemented 
existing law and policy governing ITAAC hearings. In particular, the 
procedures were developed with an eye toward the overarching statutory 
requirement for the expeditious completion of an ITAAC hearing found in 
AEA Sec.  189a.(1)(B)(v). This section provides that the Commission 
shall, to the maximum possible extent, render a decision on issues 
raised by the hearing request within 180 days of the publication of the 
notice of intended operation or the anticipated date for initial 
loading of fuel into the reactor, whichever is later. Other provisions 
of existing law and policy, the discussion of which directly follows, 
may be grouped into three categories: (1) Provisions relating to 
hearing requests, (2) provisions relating to interim operation, and (3) 
provisions relating to the initial decision of the presiding officer on 
contested issues after a hearing.

A. Hearing Request

    Section 189a.(1)(B)(i) of the AEA and 10 CFR 52.103(a) provide that 
not less than 180 days before the date scheduled for initial loading of 
fuel into the reactor, the NRC will publish in the Federal Register a 
notice of intended operation, which will provide that any person whose 
interest may be affected by operation of the plant may within 60 days 
request the Commission to hold a hearing on whether the facility as 
constructed complies, or on completion will comply, with the acceptance 
criteria of the license. The contents of the notice of intended 
operation are governed by 10 CFR 2.105. With respect to the timing of 
this notice, the Commission's goal is to publish the notice of intended 
operation 210 days before scheduled fuel load (72 FR 49367), and, as 
explained later in this notice, the NRC proposes to publish the notice 
of intended operation even earlier, if possible.
    Hearing requests are governed by 10 CFR 2.309. In accordance with 
10 CFR 2.309(a), a hearing request in a proceeding under 10 CFR 52.103 
must include a demonstration of standing and contention admissibility, 
and 10 CFR 2.309(a) does not provide a discretionary intervention 
exception for ITAAC hearings as it provides for other proceedings. 
Thus, discretionary intervention pursuant to Sec.  2.309(e) does not 
apply to ITAAC hearings as it does to other proceedings. As reflected 
in 10 CFR 2.309(f)(1)(i), the issue of law or fact to be raised in an 
ITAAC hearing request must be directed at demonstrating that one or 
more of the acceptance criteria in the combined license have not been, 
or will not be met, and that the specific operational consequences of 
nonconformance would be contrary to providing reasonable assurance of 
adequate protection of the public health and safety.\3\
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    \3\ Because the ITAAC were previously approved by the NRC and 
were subject to challenge as part of the COL proceeding, a challenge 
to the ITAAC themselves will not give rise to an admissible 
contention, but the ITAAC could be challenged in a petition to 
modify the terms and conditions of the COL that is filed under 10 
CFR 52.103(f). See 2007 Part 52 Rule, 72 FR 49367 n.3. Such 
petitions must be filed with the Secretary of the Commission and 
will be processed in accordance with 10 CFR 2.206. Because 10 CFR 
52.103(f) petitions are outside the scope of the ITAAC hearing 
process, the 10 CFR 52.103(f) process is outside the scope of this 
notice.
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    In addition to the normal requirements for hearing requests, ITAAC 
hearing requests must, as required by AEA Sec.  189a.(1)(B)(ii), show, 
prima facie, that one or more of the acceptance criteria in the 
combined license have not been, or will not be met, and must show, 
prima facie, the specific operational consequences of nonconformance 
that would be contrary to providing reasonable assurance of adequate 
protection of the public health and safety. This required ``prima 
facie'' showing is implemented in 10 CFR 2.309(f)(1)(vii). Section 
2.309(f)(1)(vii) also provides a process for petitioners to claim that 
a licensee's 10 CFR 52.99(c) report is incomplete and that this 
incompleteness prevents the petitioner from making the necessary prima 
facie showing. To employ this process, which this notice terms a 
``claim of incompleteness,'' the petitioner must identify the specific 
portion of the licensee's 10 CFR 52.99(c) report that is incomplete and 
explain why this deficiency prevents the petitioner from making the 
necessary prima facie showing.
    Also, as provided by 10 CFR 51.108, the NRC is not making any 
environmental finding in connection with its finding under 10 CFR 
52.103(g) that the acceptance criteria are met, and the Commission will 
not admit any contentions on environmental issues in an ITAAC hearing. 
Instead, the 10 CFR 52.103(g) finding is a categorical exclusion as 
provided in 10 CFR 51.22(c)(23).\4\ As the Commission explained (72 FR 
49428) when promulgating 10 CFR 51.108 and 10 CFR 51.22(c)(23): (1) The 
major federal action with respect to facility operation is issuing the 
COL because the COL authorizes operation subject to successful 
completion of the ITAAC; (2) the environmental effects of operation are 
evaluated in the COL environmental impact statement; and (3) the 
52.103(g) finding is constrained by the terms of the ITAAC, i.e., it 
involves only a finding on whether the predetermined acceptance 
criteria are met. Therefore, the environmental effects of operation 
were considered, and an opportunity for a hearing on these effects was 
provided, during the proceeding on issuance of the COL.
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    \4\ A ``categorical exclusion'' is a procedural mechanism by 
which a class of actions has been found not to have any significant 
environmental effect, and is therefore categorically excluded from 
the need for further environmental review.
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    Design certification rules contain additional provisions regarding 
ITAAC hearing requests. Any proceeding for a reactor referencing a 
certified design would be subject to the design certification rule for 
that particular design. For example, any ITAAC hearing for a plant 
referencing the AP1000 Design Certification Rule in 10 CFR Part 52, 
Appendix D, would be subject to the requirements of 10 CFR Part 52, 
Appendix D. Paragraph VIII.B.5.g of 10 CFR Part 52, Appendix D, 
establishes a process for parties who believe that a licensee has not 
complied with Paragraph VIII.B.5 when departing from Tier 2 information 
to petition to admit such a contention into the proceeding.\5\ Among 
other things, such a contention must bear on an asserted noncompliance 
with the ITAAC acceptance criteria and must also comply with the 
requirements of 10 CFR 2.309. Paragraph VIII.C.5 establishes a process 
whereby persons who believe that a change must be made to an 
operational requirement approved in the design control document or a 
technical specification (TS) derived from the generic TS may petition 
to admit such a contention into the proceeding if certain requirements, 
in addition to those set forth in 10 CFR 2.309, are met.
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    \5\ Tier 2 information is a category of information in a design 
control document that is incorporated by reference into a design 
certification rule. The definition of Tier 2 for the AP1000 design 
certification can be found at 10 CFR Part 52, Appendix D, Paragraph 
II.E.
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    In accordance with 10 CFR 2.309(i), answers to hearing requests are 
due in 25 days and no replies to answers are permitted. As reflected in 
10 CFR 2.309(j)(2), the Commission has decided that it will act as the 
presiding officer for determining whether to grant the hearing request. 
In accordance with

[[Page 21962]]

AEA Sec.  189a.(1)(B)(iii) and 10 CFR 2.309(j)(2), the Commission will 
expeditiously grant or deny the hearing request. As stated in 10 CFR 
2.309(j)(2), this Commission decision may not be the subject of an 
appeal under 10 CFR 2.311. If a hearing request is granted, the 
Commission will designate the procedures that govern the hearing as 
provided by 10 CFR 2.310(j). In accordance with 10 CFR 2.309(g), 
hearing requests (and by extension answers to hearing requests) are not 
permitted to address the selection of hearing procedures under 10 CFR 
2.310 for an ITAAC hearing.\6\
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    \6\ However, this notice is affording interested stakeholders 
the opportunity to comment on the procedures that the Commission 
will employ in an ITAAC hearing (with appropriate modifications in 
specific cases).
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B. Interim Operation

    The AEA provides for the possibility of interim operation, which is 
operation of the plant pending the completion of an ITAAC hearing. The 
potential for interim operation arises if the Commission grants a 
hearing request that satisfies the requirements of AEA Sec.  
189a.(1)(B)(ii). If the hearing request is granted, AEA Sec.  
189a.(1)(B)(iii) directs the Commission to allow interim operation if 
it determines, after considering the petitioners' prima facie showing 
and any answers thereto, that there will be reasonable assurance of 
adequate protection of the public health and safety during a period of 
interim operation. As is evident from the statutory text, Congress 
included the interim operation provision to prevent an ITAAC hearing 
from unnecessarily delaying plant operation if the hearing extends 
beyond scheduled fuel load.\7\ As provided by 10 CFR 52.103(c), the 
Commission will make the adequate protection determination for interim 
operation acting as the presiding officer. In accordance with 10 CFR 
2.341(a), parties are prohibited from seeking further Commission review 
of a Commission decision allowing interim operation.
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    \7\ The pertinent legislative history supports this view. 138 
Cong. Rec. S1686 (February 19, 1992) (statement of Sen. Johnston); 
S. Rep. No. 102-72 at 296 (1991).
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    A number of issues concerning interim operation are discussed in 
SECY-13-0033 and the associated SRM, including the following points 
relevant to the development of ITAAC hearing procedures:
     The legislative history of the EPAct indicates that 
Congress did not intend the Commission to rule on the merits of the 
petitioner's prima facie showing when making the adequate protection 
determination for interim operation. Instead, Congress intended interim 
operation for situations in which the petitioner's prima facie showing 
relates to an asserted adequate protection issue that will not arise 
during the interim operation period, or in which mitigation measures 
can be taken to preclude potential adequate protection issues during 
the period of interim operation.
     Because AEA Sec.  185b. requires the NRC to find that the 
acceptance criteria are met prior to operation, interim operation 
cannot be allowed until the NRC finds under 10 CFR 52.103(g) that all 
acceptance criteria are met, including those acceptance criteria that 
are the subject of an ITAAC hearing.
     The NRC staff proposed, and the Commission approved, that 
the 52.103(g) finding be delegated to the NRC staff. Among other 
things, this delegation means that the Commission will not make, in 
support of interim operation, a merits determination prior to the 
completion of the hearing on whether the acceptance criteria are met.
     For operational programs and requirements that are 
required to be implemented upon a 10 CFR 52.103(g) finding, these 
programs and requirements would also be implemented in the event that 
the Commission allows interim operation in accordance with 10 CFR 
52.103(c), given that the 10 CFR 52.103(g) finding would be made in 
support of interim operation.
     As provided by 10 CFR 52.103(h), ITAAC no longer 
constitute regulatory requirements after the 10 CFR 52.103(g) finding 
is made. In addition, ITAAC post-closure notifications pursuant to 10 
CFR 52.99(c)(2) are only required until the 10 CFR 52.103(g) finding is 
made. Therefore, ITAAC maintenance activities and associated ITAAC 
post-closure notifications would no longer be necessary or required 
after a 10 CFR 52.103(g) finding, including during any period of 
interim operation.

C. Initial Decision

    After the completion of an ITAAC hearing, the presiding officer 
will issue an initial decision pursuant to 10 CFR 2.340(c) on whether 
the acceptance criteria have been or will be met. As provided by 10 CFR 
2.340(f), an initial decision finding that acceptance criteria in a COL 
have been met is immediately effective upon issuance unless the 
presiding officer finds that good cause has been shown by a party why 
the initial decision should not become immediately effective. In 
accordance with 10 CFR 2.340(j), the Commission or its delegate (i.e., 
the NRC staff) will make the 10 CFR 52.103(g) finding within 10 days 
from the date of issuance of the initial decision, if:
    (1) The Commission or its delegate can find that the acceptance 
criteria not within the scope of the initial decision are met,
    (2) the presiding officer has issued a decision that the contested 
acceptance criteria have been met or will be met, and the Commission or 
its delegate can thereafter find that the contested acceptance criteria 
are met, and
    (3) notwithstanding the pendency of a 10 CFR 2.345 petition for 
reconsideration, a 10 CFR 2.341 petition for review, a 10 CFR 2.342 
stay motion, or a 10 CFR 2.206 petition.
    Section 2.340(j) is intended to describe how the 52.103(g) finding 
may be made after an initial decision by the presiding officer that the 
acceptance criteria have been, or will be, met. However, in amending 
Sec.  2.340(j) in the ITAAC Maintenance Rule, the Commission stated (77 
FR 51885-86) that Sec.  2.340(j) was being amended to ``clarify some of 
the possible paths'' for making the 52.103(g) finding after the 
presiding officer's initial decision and that Sec.  2.340(j) ``is not 
intended to be an exhaustive `roadmap' to a possible 10 CFR 52.103(g) 
finding that acceptance criteria are met.'' Thus, there may be 
situations in which the mechanism and circumstances described by 10 CFR 
2.340(j) are not wholly applicable. For example, if interim operation 
is allowed, then the 52.103(g) finding will have been made prior to the 
initial decision. In such a case, there is no need for another 
52.103(g) finding after an initial decision finding that the contested 
acceptance criteria have been met because the initial decision will 
have confirmed the correctness of the 52.103(g) finding with respect to 
the contested acceptance criteria.\8\
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    \8\ Other scenarios not covered by 10 CFR 2.340(j) include those 
in which the presiding officer does not find that the acceptance 
criteria have been or will be met, a decision which might be made 
after a period of interim operation has been authorized. How a 
negative finding by the presiding officer would be resolved by a 
licensee, and the effect such a finding would have on interim 
operation, would depend on the facts of the case and the nature of 
the presiding officer's decision. Therefore, such eventualities are 
not further addressed in these generic procedures.
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V. General Approach to ITAAC Hearing Procedure Development

    With these procedures, the Staff has attempted to develop an 
efficient and feasible process that is consistent with existing law and 
policy and that will allow the presiding officer and the parties a fair 
opportunity to develop a sound record for decision. To achieve

[[Page 21963]]

this objective, the Staff has used the following general approach.

A. Use of Existing Part 2 Procedures

    The procedures described in this notice are based on the NRC's 
rules of practice in 10 CFR Part 2, modified as necessary to conform to 
the expedited schedule and specialized nature of ITAAC hearings. The 
ITAAC hearing procedures have been modeled on the existing rules of 
practice because the existing rules have proven effective in promoting 
a fair and efficient process in adjudications and there is a body of 
experience and precedent interpreting and applying these provisions. In 
addition, using the existing rules to the extent possible could make it 
easier for potential participants in the hearing to apply the 
procedures if they are already familiar with the existing rules.

B. Choice of Presiding Officer To Conduct an Evidentiary Hearing

    While the Commission has decided that it will be the presiding 
officer for the purposes of deciding whether to grant hearing requests, 
designating hearing procedures, and determining whether there is 
adequate protection during interim operation, the Commission has not 
yet decided what entity will serve as the presiding officer for an 
evidentiary hearing on admitted contentions. For the evidentiary 
hearing, the Commission or a licensing board might serve as the 
presiding officer, or the presiding officer might be a single legal 
judge (assisted as appropriate by technical advisors). Therefore, the 
Staff has developed procedures that will accommodate all of these 
possibilities.
    If the Commission chooses not to conduct the evidentiary hearing, 
then the presiding officer would be a licensing board or a single legal 
judge. In the proposed procedures, the Commission would delegate to the 
Chief Administrative Judge the choice of whether to employ a licensing 
board or a single legal judge (assisted as appropriate by technical 
advisors). However, the Commission would retain the option of choosing 
who will conduct the evidentiary hearing in each proceeding.
    With the exception of procedures that specifically pertain to 
interactions between the Commission and a licensing board (or single 
legal judge assisted as appropriate by technical advisors), the 
procedures for an ITAAC hearing are the same whether the presiding 
officer is the Commission, a licensing board, or a single legal judge. 
Depending on the Commission's choice of presiding officer for the 
evidentiary hearing, procedures pertaining to interactions between the 
Commission and a licensing board (or single legal judge assisted as 
appropriate by technical advisors) will be retained or omitted.\9\
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    \9\ For simplicity of discussion and unless otherwise noted, the 
remainder of this notice will use ``licensing board'' rather than 
``licensing board (or single legal judge assisted as appropriate by 
technical advisors).'' Any procedure that would apply to a licensing 
board would also apply to a single legal judge if a single legal 
judge were selected to be the presiding officer.
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C. Schedule

    As explained earlier, AEA Sec.  189a.(1)(B)(v) provides that the 
Commission shall, to the maximum possible extent, render a decision on 
issues raised by the hearing request within 180 days of the publication 
of the notice of intended operation or the anticipated date for initial 
loading of fuel into the reactor, whichever is later. While the AEA 
does not require that the hearing be completed by the later of these 
two dates in all cases, the procedures described in this notice have 
been developed with the intent of satisfying the statutory goal for 
timely completion of the hearing. However, there may be cases where the 
ITAAC hearing extends beyond scheduled initial fuel load because of 
unusual situations or because of circumstances beyond the control of 
the NRC.
    Because the Commission intends to publish the notice of intended 
operation 210 days before scheduled initial fuel load, the later of the 
two dates identified in AEA Sec.  189a.(1)(B)(v) will, in practice, be 
scheduled initial fuel load. Of these 210 days, 85 days will be 
consumed by the 60-day period for filing hearing requests and the 25-
day period for filing answers to hearing requests. Thus, meeting the 
statutory goal for completing the hearing will ordinarily require that 
the NRC be able to determine whether to grant the hearing request, hold 
a hearing on any admitted contentions, and render a decision after 
hearing within 125 days of the submission of answers to hearing 
requests.\10\
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    \10\ A licensee is required by 10 CFR 52.103(a) to notify the 
NRC of its scheduled date for initial fuel load no later than 270 
days before the scheduled date and to update its schedule every 30 
days thereafter. Thus, a licensee might, in a schedule update after 
the issuance of the notice of intended operation, attempt to move 
its scheduled fuel load date to an earlier time. However, a 
contraction of the initial fuel load schedule after the issuance of 
the notice of intended operation is contrary to the intent of the 
AEA. The AEA contemplates that the hearing process will be 
triggered, and the schedule will in part be determined, by issuance 
of the notice of intended operation, the timing of which is based on 
the fuel load schedule that the licensee provides to the NRC before 
the issuance of the notice of intended operation.
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    To meet the statutory objective for timely completion of the 
hearing, the NRC must complete the hearing process much faster than is 
usually achieved in NRC practice for other hearings. However, the ITAAC 
hearing process is different from other NRC hearings in that the 
contested issues will be narrowly constrained by the terms of the ITAAC 
and the required prima facie showing. In addition, the NRC anticipates 
that with the required prima facie showing and the answers thereto, the 
parties will have already substantially established their hearing 
positions and marshalled their supporting evidence. Furthermore, the 
parties' initial filings, in conjunction with other available 
information (including licensee ITAAC notifications describing the 
completion, or the plans for completing, each ITAAC), will provide the 
parties with at least a basic understanding of the other parties' 
positions from the beginning of the proceeding.
    Given the differences between an ITAAC hearing and other NRC 
hearings, the Staff took several steps to expedite the ITAAC hearing 
process. The most important step is that the hearing preparation period 
will begin as soon as the hearing request is granted. In other NRC 
proceedings associated with license applications, hearing requests are 
due soon after the license application is accepted for NRC staff 
review, and the preparation of pre-filed written testimony and position 
statements does not begin until months or years later, after the NRC 
staff completes its review. However, the parties to an ITAAC hearing 
can begin preparing their testimony and position statements as soon as 
a hearing request is granted given the focused nature of an ITAAC 
hearing and given the information and evidence already available to, 
and established by, the parties at that point in the proceeding. 
Beginning the hearing preparation process upon the granting of a 
hearing request is expected to dramatically reduce the length of the 
hearing process, which should reduce overall resource burdens on 
participants in the hearing.\11\
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    \11\ Some stakeholders have complained that a lengthy NRC 
hearing process requires greater resources from intervenors. See 
Anthony Z. Roisman, Comments on Proposed Amendments to Adjudicatory 
Process Rules and Related Requirements (76 FR 10781), at 2-4 (April 
26, 2011) (ADAMS Accession No. ML11119A231); Letter from Diane 
Curran to NRC Commissioners, Comments on NRC Public Participation 
Process, at 10, 12 (February 26, 2013) (ADAMS Accession No. 
ML13057A975).
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    Another important step is to eliminate procedures from the hearing 
process

[[Page 21964]]

that are time-consuming, resource-intensive, and unnecessary under the 
particular circumstances of an ITAAC proceeding. For example, because 
the hearing will be concluded within a few months of the granting of a 
hearing request, there is little purpose served by summary disposition 
motions and contested motions to dismiss.\12\ In addition, by preparing 
ahead of time detailed procedures for the conduct of ITAAC hearings, 
the NRC is avoiding delays that might occur if detailed procedures were 
not developed and the presiding officer needed to make ad hoc decisions 
on how to address foreseeable issues that could have been considered 
earlier.
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    \12\ However, to avoid holding a hearing unnecessarily, joint 
motions to dismiss that are agreed to by all parties will be 
entertained.
---------------------------------------------------------------------------

    To instill discipline with respect to meeting the hearing schedule, 
the ITAAC hearing procedures provide that the Commission, when imposing 
procedures for the conduct of the hearing, will set a strict deadline 
for the issuance of a presiding officer's initial decision after the 
hearing. This strict deadline can only be extended upon a showing that 
``unavoidable and extreme circumstances'' \13\ necessitate the delay. 
This strict deadline provision, which would be included whether the 
Commission or a licensing board is the presiding officer, will serve to 
prevent delays in the hearing decision, including delays in any 
intermediate step of the hearing process that might delay the hearing 
decision.
---------------------------------------------------------------------------

    \13\ This standard is taken from the Policy on Conduct of 
Adjudicatory Proceedings, CLI-98-12, 48 NRC 18, 21 (1998).
---------------------------------------------------------------------------

    The procedures in this notice have been developed on the assumption 
that the notice of intended operation will be issued 210 days before 
scheduled fuel load. There is a practical difficulty with issuing the 
notice of intended operation earlier than 210 days before scheduled 
fuel load: Uncompleted ITAAC notifications are not required to be 
submitted until 225 days before scheduled fuel load. Until these 
uncompleted ITAAC notifications are received, members of the public 
will not have a basis on which to file contentions with respect to 
uncompleted ITAAC. Thus, the notice of intended operation cannot be 
issued until after the receipt and processing of all uncompleted ITAAC 
notifications. Nevertheless, if a licensee voluntarily submits all 
uncompleted ITAAC notifications somewhat earlier than 225 days before 
scheduled initial fuel load, then the notice of intended operation 
could be issued earlier. Even though early submission is not required 
by NRC regulations, the NRC would like to explore the possibility of a 
licensee's voluntary early submittal, thereby permitting the NRC to 
issue the notice of intended operation somewhat earlier than 210 days 
before scheduled initial fuel load. Early issuance of the notice of 
intended operation might facilitate the completion of the hearing by 
scheduled fuel load notwithstanding the occurrence of some event that 
would otherwise cause delay. The NRC requests comment on the pros and 
cons of this approach and on how early the NRC might reasonably issue 
the notice of intended operation.
    Finally, and unavoidably, meeting the statutory goal for completing 
the ITAAC hearing will require the parties to exercise a high degree of 
diligence in satisfying their obligations as participants in the 
hearing. To this end, the proposed ITAAC hearing procedures shorten a 
number of deadlines from those provided by current regulations. While 
this will require greater alertness and efficiency on the part of 
hearing participants, the deadlines in these procedures are feasible, 
and the burden on participants will be somewhat ameliorated by the 
focused nature of ITAAC hearings. In addition, a shorter hearing period 
will lessen the overall resource burden on participants, which may be 
advantageous to participants with limited financial resources.

D. Hearing Formats

    The hearing format used to decide admitted contentions depends, in 
the first instance, on whether testimony will be necessary to resolve 
the contested issues. While testimony is employed in the vast majority 
of NRC hearings because contentions almost always involve issues of 
fact, the NRC sometimes admits legal contentions, i.e., contentions 
that raise only legal issues.\14\ The procedures for legal contentions, 
which are explained in more detail later in this notice, will involve 
the Commission setting a briefing schedule at the time it grants the 
hearing request, with the briefing schedule determined on a case-by-
case basis.
---------------------------------------------------------------------------

    \14\ See, e.g., U.S. Department of Energy (High-Level Waste 
Repository), CLI-09-14, 69 NRC 580, 588-591 (2009).
---------------------------------------------------------------------------

    Hearings involving testimony are necessarily more complex. A 
threshold question for such hearings is whether testimony should be 
delivered entirely orally, delivered entirely in written form, or as in 
the case of proceedings under Subpart L of 10 CFR Part 2, delivered 
primarily in written form with an oral hearing being used primarily to 
allow the presiding officer to gain a better understanding of the 
testimony and to clarify the record. For the following reasons, the 
Staff believes that the best choice is the Subpart L approach, which is 
the most widely used approach in NRC hearings and which has 
demonstrated its effectiveness since implementation in its current form 
in 2004.
    The Subpart L approach has many benefits. Written testimony and 
statements of position allow the parties to provide their views with a 
greater level of clarity and precision, which is important for hearings 
on scientific and engineering matters. With the positions of the 
parties clearly established, oral questions and responses can be used 
to quickly and efficiently probe the positions of the parties. The use 
of oral questions and responses is more efficient than written 
questions and responses because oral questioning allows for back-and-
forth communication between the presiding officer and the witnesses 
that can be completed more quickly than written questioning. In 
addition, the submission of testimony prior to the oral hearing 
increases the quality of the oral hearing because it allows more time 
for the presiding officer to thoughtfully assess the testimony and 
carefully craft questions that will best elucidate those matters 
crucial to the presiding officer's decision. Finally, there are certain 
efficiencies gained by the use of written testimony that are not 
available with entirely oral testimony. In Subpart L proceedings, pre-
filed written testimony and exhibits are often admitted en masse at the 
beginning of the oral hearing, and the presiding officer's questioning 
can be completed in a relatively short amount of time. In the absence 
of pre-filed written testimony, however, an oral hearing will consume 
more time because the entirety of the evidentiary record will need to 
be established sequentially and orally, and the admission of exhibits 
would be subject to the more cumbersome and time-consuming admission 
process typical of trials.
    The Staff considered, but rejected, a hearing format based on the 
procedures in 10 CFR Part 2, Subpart N, ``Expedited Proceedings with 
Oral Hearings.'' As the Commission explained in the final rule entitled 
``Changes to Adjudicatory Process'' (69 FR 2214-15; January 14, 2004), 
Subpart N is intended to be a `` `fast track' process for the 
expeditious resolution of issues in cases where the contentions are few 
and not particularly complex, and therefore may be efficiently 
addressed in a short hearing using simple procedures and oral

[[Page 21965]]

presentations.'' In addition, ``the [Subpart N] procedures were 
developed to permit a quick, relatively informal proceeding where the 
presiding officer could easily make an oral decision from the bench, or 
in a short time after conclusion of the oral phase of the hearing.'' At 
this time, several years before the first ITAAC hearing commences, the 
NRC does not have sufficient experience to conclude that the issues to 
be resolved in an ITAAC hearing will be simple enough to profitably 
employ the procedures of Subpart N and forego the advantages accruing 
from written testimony and statements of position.
    In addition, Subpart N does not appear to be superior to a Subpart 
L type approach with respect to the timely completion of the hearing. 
The model milestones in 10 CFR Part 2, Appendix B, Paragraph IV for an 
enforcement hearing under Subpart N contemplate that the time between 
the granting of the hearing request and an initial decision is 90 days 
plus the time taken by the oral hearing and the closing of the record. 
However, the two alternative hearing tracks described later in this 
notice contemplate that the time between the granting of the hearing 
request and an initial decision will be either 80 days or 95 days.

VI. Proposed General ITAAC Hearing Procedures

    Employing the general approach described in the previous section, 
the Staff has developed, and is seeking comment on, four templates with 
procedures for the conduct of an ITAAC hearing. The first template, 
Template A ``Notice of Intended Operation and Associated Orders'' 
(ADAMS Accession No. ML14097A460), includes the notice of intended 
operation, which informs members of the public of their opportunity to 
file a hearing request, includes an order imposing procedures for 
requesting access to sensitive unclassified non-safeguards information 
(SUNSI) and Safeguards Information (SGI) for the purposes of contention 
formulation (SUNSI-SGI Access Order),\15\ and includes an order 
imposing additional procedures specifically pertaining to an ITAAC 
hearing.
---------------------------------------------------------------------------

    \15\ SUNSI-SGI Access Orders accompany hearing notices in cases 
where the NRC believes that a potential party may deem it necessary 
to obtain access to SUNSI or SGI for the purposes of meeting 
Commission requirements for intervention. See 10 CFR 2.307(c). Given 
the range of matters covered by the ITAAC, it is appropriate to 
issue a SUNSI-SGI Access Order with the notice of intended 
operation.
---------------------------------------------------------------------------

    The second, third, and fourth templates (Templates B, C, and D) are 
for Commission orders imposing procedures after the Commission has made 
a determination on the hearing request. Specifically, the second 
template, Template B ``Procedures for Hearings Involving Testimony'' 
(ADAMS Accession No. ML14097A468), includes procedures for the conduct 
of a hearing involving testimony. The third template, Template C 
``Procedures for Hearings Not Involving Testimony'' (ADAMS Accession 
No. ML14097A471), includes procedures for resolving legal contentions. 
The fourth template, Template D ``Procedures for Resolving Claims of 
Incompleteness'' (ADAMS Accession No. ML14097A476), includes procedures 
for resolving valid claims of incompleteness.
    One issue not addressed by the templates is the potential for delay 
caused by the need to undergo a background check (including a criminal 
history records check) for access to SGI. This background check can 
take several months, and delay could occur if the persons seeking 
access to SGI are not already cleared for access and do not seek 
clearance until the notice of intended operation is issued. However, 
the ``Procedures to Allow Potential Intervenors to Gain Access to 
Relevant Records that Contain Sensitive Unclassified Non-Safeguards 
Information or Safeguards Information'' (SUNSI-SGI Access Procedures) 
(February 29, 2008) (ADAMS Accession No. ML080380626) provide a ``pre-
clearance'' process, by which a potential party who might seek access 
to SGI is allowed to request initiation of the necessary background 
check in advance of the notice providing an opportunity to request a 
hearing. Therefore, to avoid the potential for delays from background 
checks, the Staff contemplates that a plant-specific Federal Register 
notice announcing a pre-clearance process would be published 180 days 
prior to the expected publication of the notice of intended operation 
for that plant.\16\ This ``pre-clearance notice'' would inform 
potential parties that if they do not take advantage of this pre-
clearance opportunity, the NRC will not delay its actions in completing 
the hearing or making the 52.103(g) finding. In other words, members of 
the public who do not take advantage of the pre-clearance process would 
have to take the proceeding as they find it if they ultimately obtain 
access to SGI for contention formulation. This is necessitated by the 
plain language of the AEA, which directs the Commission to complete the 
hearing to the maximum possible extent by scheduled fuel load, and is 
consistent with the existing SUNSI-SGI Access Procedures (Attachment 1, 
p. 11), which caution potential parties that ``given the strict 
timelines for submission of and rulings on the admissibility of 
contentions (including security-related contentions) . . . potential 
parties should not expect additional flexibility in those established 
time periods if they decide not to exercise the pre-clearance option.''
---------------------------------------------------------------------------

    \16\ Because the NRC expects to issue the notice of intended 
operation 210 days before scheduled fuel load, this pre-clearance 
notice would be issued about 390 days before scheduled fuel load.
---------------------------------------------------------------------------

    In the following subsections, this notice will provide a broad 
overview of the procedures, will address certain significant procedures 
described in the templates, and will request specific comment on areas 
where the Staff has developed multiple possible approaches to an issue 
but has not yet decided which approach to recommend to the Commission. 
Certain procedures of lesser significance, and the rationales therefor, 
are described solely in the templates.

A. Notice of Intended Operation

    The Federal Register notice of intended operation, the contents of 
which are governed by 10 CFR 2.105, will provide that any person whose 
interest may be affected by operation of the plant, may, within 60 
days, request the Commission to hold a hearing on whether the facility 
as constructed complies, or on completion will comply, with the 
acceptance criteria in the COL. Among other things, the notice of 
intended operation (1) will specifically describe how the hearing 
request and answers thereto may be filed, (2) will identify the 
standing, contention admissibility, and other requirements applicable 
to the hearing request and answers thereto, and (3) will identify where 
information that is potentially relevant to a hearing request may be 
obtained. In addition, the notice of intended operation will be 
accompanied by a SUNSI-SGI Access Order, and an order imposing 
additional procedures specifically pertaining to an ITAAC hearing 
(Additional Procedures Order). The following subsections describe the 
significant procedures included in the notice of intended operation 
template.
1. Prima Facie Showing
    To obtain a hearing on whether the facility as constructed 
complies, or upon completion will comply, with the acceptance criteria 
in the combined license, AEA Sec.  189a.(1)(B)(ii) provides that a 
petitioner's request for hearing

[[Page 21966]]

shall show, prima facie, that one or more of the acceptance criteria in 
the combined license have not been, or will not be met, and the 
specific operational consequences of nonconformance that would be 
contrary to providing reasonable assurance of adequate protection of 
the public health and safety. This requirement is implemented in 10 CFR 
2.309(f)(1)(vii), which requires this prima facie showing as part of 
the contention admissibility standards. Without meeting this 
requirement, the contention cannot be admitted and the hearing request 
cannot be granted.
    In making this prima facie showing, the Additional Procedures Order 
will state that any declaration of an eyewitness or expert witness 
offered in support of contention admissibility needs to be signed by 
the eyewitness or expert witness in accordance with 10 CFR 2.304(d). If 
declarations are not signed, their content will be considered, but they 
will not be accorded the weight of an eyewitness or an expert witness, 
as applicable, with respect to satisfying the prima facie showing 
required by 10 CFR 2.309(f)(1)(vii). The purpose of this provision is 
to ensure that a position that is purportedly supported by an expert 
witness or an eyewitness is actually supported by that witness.
2. Claims of Incompleteness
    While a prima facie showing is required before a contention can be 
admitted and a hearing request granted, 10 CFR 2.309(f)(1)(vii) 
provides a process for petitioners to claim that the licensee's 10 CFR 
52.99(c) report is incomplete and that this incompleteness prevents the 
petitioner from making the necessary prima facie showing. The 
petitioner must identify the specific portion of the licensee's 10 CFR 
52.99(c) report that is incomplete and explain why this deficiency 
prevents the petitioner from making the necessary prima facie showing. 
If the Commission determines that the claim of incompleteness is valid, 
it intends to issue an order, described later in this notice that will 
require the licensee to provide the additional information and provide 
a process for the petitioner to file a contention based on the 
additional information. If the petitioner files an admissible 
contention thereafter, and all other hearing request requirements have 
been met, then the hearing request will be granted.
3. Interim Operation
    As stated earlier, the AEA requires the Commission to determine, 
after considering the petitioner's prima facie showing and answers 
thereto, whether there is reasonable assurance of adequate protection 
of the public health and safety during a period of interim operation 
while the hearing is being completed. Because this adequate protection 
determination is based on the parties' initial filings, the notice of 
intended operation will specifically request information from the 
petitioners, the licensee, and the NRC staff regarding the time period 
and modes of operation during which the adequate protection concern 
arises and any mitigation measures proposed by the licensee. The notice 
of intended operation would also inform the petitioners, the NRC staff, 
and the licensee that, ordinarily, their initial filings will be their 
only opportunity to address adequate protection during interim 
operation.
    Because the Commission's interim operation determination is a 
technical finding, a proponent's views regarding adequate protection 
during interim operation must be supported with alleged facts or expert 
opinion, including references to the specific sources and documents on 
which the proponent relies. Any expert witness or eyewitness 
declarations, including a statement of the qualifications and 
experience of the expert, must be signed in accordance with 10 CFR 
2.304(d). The probative value that the NRC accords to a proponent's 
position on adequate protection during interim operation will depend on 
the level and specificity of support provided by the proponent, 
including the qualifications and experience of each expert.
    If the Commission grants the hearing request, it may determine that 
additional briefing is necessary to support an adequate protection 
determination. If the Commission makes this determination, then it will 
issue a briefing order concurrently with the granting of the hearing 
request. In addition, if mitigation measures are proposed by the 
licensee in its answer to the hearing request, then the Commission 
would issue a briefing order allowing the NRC staff and the petitioners 
an opportunity to address adequate protection during interim operation 
in light of the mitigation measures proposed by the licensee in its 
answer.\17\
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    \17\ Because an interim operation determination is necessary 
only if contentions are admitted, it makes sense to have additional 
briefing on licensee-proposed mitigation measures only after a 
decision on the hearing request. However, as explained later, a 
different process applies to contentions submitted after the hearing 
request is granted because of the greater need for an expedited 
decision on interim operation.
---------------------------------------------------------------------------

    The Commission has discretion regarding the timing of the adequate 
protection determination for interim operation, but since the purpose 
of the interim operation provision is to prevent the hearing from 
unnecessarily delaying fuel load, an interim operation determination 
will be sufficiently expeditious if it is made by scheduled fuel load. 
With respect to the relationship between the timing of the NRC staff's 
52.103(g) finding and the Commission's adequate protection 
determination, the Staff believes it is best if the adequate protection 
determination precedes the 52.103(g) finding because the 40-year term 
of the issued COLs commences when the 52.103(g) finding is made and 
because certain regulatory and license requirements related to 
operation are triggered by the 52.103(g) finding. Concurrent with the 
52.103(g) finding, the NRC staff could issue an order that would allow 
interim operation and include any terms and conditions on interim 
operation that are imposed by the Commission as part of its adequate 
protection determination. In addition, because the NRC staff intends to 
inform the Commission that the NRC staff is prepared to make the 
52.103(g) finding prior to it actually making the finding, the 
Commission could make the adequate protection determination after this 
NRC staff notification but before the 52.103(g) finding.
    Finally, if the Commission determines that there is adequate 
protection during the period of interim operation, a request to stay 
the effectiveness of this decision would not be entertained. The 
interim operation provision serves the purpose of a stay provision 
because it is the Congressionally-mandated process for determining 
whether the 52.103(g) finding that the acceptance criteria are met will 
be given immediate effect. The Commission's decision on interim 
operation becomes final agency action once the NRC staff makes the 
52.103(g) finding and issues an order allowing interim operation.
4. Hearing Requests, Intervention Petitions, and Motions for Leave To 
File New or Amended Contentions or Claims of Incompleteness After the 
Original Deadline
    The notice of intended operation includes procedures governing 
hearing requests, intervention petitions, and motions for leave to file 
new or amended contentions or claims of incompleteness that are filed 
after the original deadline because such filings might be made between 
the deadline for hearing requests and a Commission decision on hearing 
requests. Filings

[[Page 21967]]

after the initial deadline must show good cause as defined by 10 CFR 
2.309(c), which includes the Sec.  2.309(c)(1)(iii) requirement that 
the filing has been submitted in a timely fashion based on the 
availability of new information. In other proceedings, licensing boards 
have typically found that good cause will be satisfied if the filing is 
made within 30 days of the availability of the information upon which 
the filing is based, and Sec.  2.309(i)(1) allows 25 days to answer the 
filing. The Staff believes that timeliness expectations should be 
clearly stated in the notice of intended operation, but is also 
considering whether these time periods should be shortened in the 
interest of expediting the proceeding. Because the Staff believes that 
these time periods might be shortened by, at most, 10 days, the 
following three options are under consideration: (1) The petitioner is 
given 30 days from the new information to make its filing and the other 
parties have 25 days to answer; (2) the petitioner is given 20 days 
from the new information to make its filing and the other parties have 
15 days to answer; or (3) the petitioner is given [some period between 
20 and 30 days] from the new information to make its filing and the 
other parties have [some period between 15 and 25 days] to answer. The 
Staff specifically requests comment on the feasibility and desirability 
of these options.
    The Commission would also need to consider issues associated with 
interim operation with respect to any grant of a hearing request, 
intervention petition, or new or amended contention filed after the 
original deadline. Therefore, the interim operation provisions 
described previously would also apply to hearing requests, intervention 
petitions, or new or amended contentions filed after the original 
deadline. A claim of incompleteness, however, does not bear on interim 
operation because interim operation is intended to address whether 
operation shall be allowed notwithstanding the petitioner's prima facie 
showing, while a claim of incompleteness is premised on the 
petitioner's inability to make a prima facie showing. Interim operation 
would be addressed after any incompleteness was cured if the petitioner 
files a contention on that topic.
    In its 2008 Policy Statement (73 FR 20973), the Commission stated 
that to lend predictability to the ITAAC compliance process, it would 
be responsible for three decisions related to ITAAC hearings: (1) The 
decision on whether to grant the hearing request, (2) the adequate 
protection determination for interim operation, and (3) the designation 
of the ITAAC hearing procedures. Accordingly, the Staff believes that 
it would be consistent with this policy choice for the Commission to 
rule on all hearing requests, intervention petitions, and motions for 
leave to file new contentions or claims of incompleteness that are 
filed after the original deadline. If the Commission grants the hearing 
request, intervention petition, or motion for leave to file new 
contentions, the Commission will designate the hearing procedures for 
the newly admitted contentions and would determine whether there will 
be adequate protection during the period of interim operation with 
respect to the newly admitted contentions. If the Commission determines 
that a new or amended claim of incompleteness demonstrates a need for 
additional information in accordance with 10 CFR 2.309(f)(1)(vii), the 
Commission would designate separate procedures for resolving the claim.
    For motions for leave to file amended contentions, a Commission 
ruling may not be necessary to lend predictability to the hearing 
process because the Commission will have provided direction on the 
admissibility of the relevant issues when it ruled on the original 
contention. Thus, it seems appropriate for the Commission to retain the 
option of delegating rulings on amended contentions to a licensing 
board. If the Commission delegates a contention admissibility ruling to 
a licensing board and the licensing board admits the amended 
contention, then the Commission would still make the adequate 
protection determination for interim operation. In addition, the 
hearing procedures governing the adjudication of the original 
contention would also apply to the amended contention if admitted by 
the licensing board. Furthermore, the deadline for an initial decision 
on the amended contention (which is a strict deadline) would be the 
same date as the deadline for an initial decision on the original 
contention. Consistent with the provisions for strict deadlines, the 
deadline for an initial decision can only be changed upon a showing of 
unavoidable and extreme circumstances.
    The Staff is considering, and requesting comment on, whether to 
eliminate the need to address the standards for a motion to reopen for 
a hearing request, intervention petition, or motion for leave to file a 
new or amended contention filed after the original deadline. A possible 
rationale for not applying the reopening provisions in such situations 
is that the purposes served by the reopening provisions--to ensure an 
orderly and timely disposition of the hearing--would be addressed by 
the requirements applying to hearing requests, intervention petitions, 
and motions for leave to file new or amended contentions filed after 
the original deadline. Specifically, one could argue that any 
timeliness concerns are addressed by the good cause requirement in 10 
CFR 2.309(c) and that concerns regarding newly raised issues being 
significant and substantiated are addressed by the prima facie showing 
requirement in 10 CFR 2.309(f)(1)(vii).
    Finally, because the Commission would be ruling on (or delegating a 
ruling on) all hearing requests, intervention petitions, and motions 
for leave to file new or amended contentions or claims of 
incompleteness that are filed after the original deadline, all such 
filings after the original deadline would be filed with the Commission. 
The Commission contemplates that a ruling would be issued within 30 
days of the filing of answers.
5. SUNSI-SGI Access Order
    The SUNSI-SGI Access Order included with the notice of intended 
operation is based on the template for the SUNSI-SGI Access Order that 
is issued in other proceedings, with the following modifications:
     To expedite the proceeding, initial requests for access to 
SUNSI or SGI must be made electronically by email, unless use of email 
is impractical, in which case delivery of a paper document must be made 
by hand delivery or overnight mail. All other filings in the proceeding 
must be made through the E-filing system with certain exceptions 
described later in this notice.
     To expedite the proceeding, the expectation for NRC staff 
processing of documents and the filing of protective orders and non-
disclosure agreements has been reduced from 20 days after a 
determination that access should be granted to 10 days.
     As with SUNSI-SGI Access Orders issued in other 
proceedings, requests for access to SUNSI or SGI must be submitted 
within 10 days of the publication of the Federal Register notice, and 
requests submitted later than this period will not be considered absent 
a showing of good cause for the late filing, addressing why the request 
could not have been filed earlier. For the purposes of the SUNSI-SGI 
Access Order issued with the notice of intended operation, the showing 
of good cause has been defined as follows: The requestor must 
demonstrate that its

[[Page 21968]]

request for access to SUNSI or SGI has been filed by the later of (a) 
10 days from the date that the existence of the SUNSI or SGI document 
becomes public information, or (b) 10 days from the availability of new 
information giving rise to the need for the SUNSI or SGI to formulate 
the contention.
     The SUNSI-SGI Access Orders issued in other proceedings 
provide that any contentions based on the requested SUNSI or SGI must 
be filed no later than 25 days after the requestor is granted access to 
that information, except that such contentions may be filed with the 
initial hearing request if more than 25 days remain between the 
granting of access to the information and the deadline for the hearing 
request. However, as stated previously, the NRC requests comment on the 
time generally given for new or amended contentions filed after the 
original deadline, and it is possible that the Commission will choose 
to give less than 25 days for the filing of new or amended contentions. 
If the Commission chooses a time period for new or amended contentions 
that is less than 25 days, the Staff believes that it is reasonable to 
use this same reduced period for contentions based on access to SUNSI 
or SGI, and the SUNSI-SGI Access Order would be modified accordingly.
     Because the Commission is ruling on the initial hearing 
request and because the proceeding may be expedited by removing a layer 
of possible appellate review, the Commission might wish to hear, in the 
first instance, requests for review of NRC staff determinations on 
access to SUNSI or SGI. On the other hand, the Commission might wish to 
delegate rulings on such requests for review to a licensing board. Both 
of these possibilities are included as alternative options in the 
SUNSI-SGI Access Order, and it is contemplated that one of these 
alternatives would be chosen by the Commission when it approves the 
final general ITAAC hearing procedures. If the Commission decides that 
a licensing board will rule on requests for review of NRC staff access 
determinations, a procedure for interlocutory appeal of these licensing 
board decisions would be included in the Additional Procedures Order 
issued with the notice of intended operation.
6. Filing of Documents and Time Computation
    To support the expedited nature of this proceeding, the provisions 
in 10 CFR 2.302 and 10 CFR 2.305 for the filing and service of 
documents are being modified such that, for requests to file documents 
other than through the E-Filing system, first-class mail will not be 
one of the allowed alternative filing methods. The possible 
alternatives will be limited to transmission either by fax, email, hand 
delivery, or overnight mail to ensure expedited delivery. Use of 
overnight mail will only be allowed if fax, email, or hand delivery is 
impractical. In addition, for documents that are too large for the E-
Filing system but could be filed through the E-Filing system if 
separated into smaller files, the filer must segment the document and 
file the segments separately. In a related modification, the time 
computation provisions in 10 CFR 2.306(b)(1) through 2.306(b)(4), which 
allow additional time for responses to filings made by mail delivery, 
do not apply. Because overnight delivery will result in only minimal 
delay, it is not necessary to extend the time for a response.
7. Motions
    To accommodate the expedited timeline for the hearing, the time 
period for filing and responding to motions must be shortened from the 
time periods set forth in 10 CFR Part 2, Subpart C. Therefore, all 
motions, except for motions for leave to file new or amended 
contentions or claims of incompleteness filed after the deadline, shall 
be filed within 7 days after the occurrence or circumstance from which 
the motion arises, and answers to motions shall be filed within 7 days 
of the motion.
    Motions for extension of time will be allowed, but good cause must 
be shown for the requested extension of time based on an event 
occurring before the deadline. To meet the statutory mandate for the 
timely completion of the hearing, deadlines must be adhered to strictly 
and only exceptional circumstances should give rise to delay. 
Therefore, in determining whether there is good cause for an extension, 
the factors in 10 CFR 2.334 will be considered, but ``good cause'' will 
be interpreted strictly, and a showing of ``unavoidable and extreme 
circumstances'' will be required for more than very minor extensions. 
The Staff requests comment on whether ``very minor extensions'' should 
be defined in a more objective manner or whether a showing of 
unavoidable and extreme circumstances should be required for all 
extension requests, no matter how minor.
    Motions for extension of time shall be filed as soon as possible, 
and, absent exceptional circumstances, motions for extension of time 
will not be entertained if they are filed more than two business days 
after the moving party discovers the event that gives rise to the 
motion.\18\ The Staff selected an event-based trigger for the filing of 
an extension request because meritorious motions will likely be based 
on events outside the party's control given the strict interpretation 
of good cause. The Staff, however, requests comment on whether a 
deadline-based trigger (e.g., ``motions for extension of time shall be 
filed as soon as possible, but no later than 3 days before the 
deadline'') should be used in lieu of, or in combination with, an 
event-based trigger.
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    \18\ Consistent with practice under 10 CFR 2.307, a motion for 
extension of time might be filed shortly after a deadline has 
passed, e.g., an unanticipated event on the filing deadline 
prevented the participant from filing. Further discussion of this 
practice is found in the final rule entitled ``Amendments to 
Adjudicatory Process Rules and Related Requirements'' (77 FR 46562, 
46571; August 3, 2012).
---------------------------------------------------------------------------

    With respect to motions for reconsideration, three options are 
under consideration. In Option 1, the 10 CFR 2.323(e) provisions for 
motions for reconsideration will be retained with the only modification 
being the reduced filing period described previously. The rationale for 
this option is that it may be premature, given the NRC's lack of 
experience with ITAAC hearings, to limit the opportunity to seek 
reconsideration. Option 2 restricts motions for reconsideration to a 
presiding officer's initial decision and Commission decisions on appeal 
of a presiding officer's initial decision. The rationale for allowing 
reconsideration of these decisions is that these are the most important 
decisions in the proceeding and reconsideration of these decisions does 
not prevent them from taking effect. With respect to prohibiting 
reconsideration in other circumstances, the rationale is that (1) 
reconsideration of other decisions is unlikely to be necessary, (2) the 
resources necessary to prepare, review, and rule on requests for 
reconsideration take time away from other hearing-related tasks, (3) 
interlocutory rulings that have a material effect on the ultimate 
outcome of the proceeding can be appealed, and (4) the appeals process 
will not cause undue delay given the expedited nature of the 
proceeding.
    Option 3 prohibits motions for reconsideration. This option is 
based on the rationale that such motions consume the resources of the 
parties and the presiding officer without compensating benefit. 
Reconsideration is unlikely to be necessary for many decisions, and the 
resources necessary to prepare, review and rule on requests for 
reconsideration of interlocutory decisions would take time away from

[[Page 21969]]

other hearing-related tasks. In addition, parties who disagree with a 
presiding officer's order may seek redress through the appellate 
process, which should not cause undue delay given the expedited nature 
of the proceeding.
    In addition, Options 2 and 3 include a limitation on motions for 
clarification. To prevent motions for clarification from becoming de 
facto motions for reconsideration, only motions for clarification based 
on an ambiguity in a presiding officer order would be permitted. In 
addition, a motion for clarification must explain the basis for the 
perceived ambiguity and may offer possible interpretations of the 
purportedly ambiguous language, but the motion for clarification may 
not advocate for a particular interpretation of the presiding officer 
order.
8. Notifications Regarding Relevant New Developments in the Proceeding
    Section 189a.(1)(B)(i)-(ii) of the AEA and 10 CFR 2.309(f)(1)(vii), 
2.340(c) require contentions to be submitted, and permit a hearing to 
go forward, on the predictive question of whether one or more of the 
acceptance criteria in the combined license will not be met. 
Additionally, a licensee might choose to re-perform an inspection, 
test, or analysis as part of ITAAC maintenance or to dispute a 
contention,\19\ or events subsequent to the performance of an ITAAC 
might be relevant to the continued validity of the earlier ITAAC 
performance. As a consequence, it is possible for the factual predicate 
of a contention to change over the course of the proceeding, thus 
affecting the contention or the hearing schedule. Given this and as 
directed by the Commission in USEC Inc. (American Centrifuge Plant), 
CLI-06-10, 63 NRC 451, 470 (2006), the parties have a continuing 
obligation to notify the other parties and the presiding officer of 
relevant new developments in the proceeding. In addition, to ensure 
that the parties and the Commission stay fully informed of the status 
of challenged ITAAC as a hearing request is being considered, any 
answers to the hearing request from the NRC staff and the licensee must 
discuss any changes in the status of challenged ITAAC.
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    \19\ The legislative history of the EPAct suggests that re-
performing the ITAAC would be a simpler way to resolve disputes 
involving competing eyewitness testimony. 138 Cong. Rec. S1143-44 
(February 6, 1992) (statement of Sen. Johnston). In addition, ITAAC 
re-performance might occur as part of the licensee's maintenance of 
the ITAAC, and might also result in an ITAAC post-closure 
notification.
---------------------------------------------------------------------------

    After answers are filed, the parties must notify the Commission and 
the other parties in a timely fashion as to any changes in the status 
of a challenged ITAAC up to the time that the presiding officer rules 
on the admissibility of the contention. This would include notifying 
the Commission and the parties of information related to re-performance 
of an ITAAC that might bear on the proposed contentions. In addition, 
after answers are filed, the licensee must notify the Commission and 
the parties of the submission of any ITAAC closure notification or 
ITAAC post-closure notification for a challenged ITAAC. This notice 
must be filed on the same day that the ITAAC closure notification or 
ITAAC post-closure notification is submitted to the NRC.
9. Stays
    The stay provisions of 10 CFR 2.342 and 2.1213 apply to this 
proceeding, but in the interests of expediting the proceeding, (1) the 
deadline in Sec.  2.342 for filing either a stay application or an 
answer to a stay application is shortened to 7 days, and (2) the 
deadline in Sec.  2.1213(c) to file an answer supporting or opposing a 
stay application is likewise reduced to 7 days. In addition, as 
explained previously, a request to stay the effectiveness of the 
Commission's decision on interim operation will not be entertained.
10. Interlocutory Appeals of Decisions on Access to Sensitive 
Information
    Until the hearing request is granted, all rulings will be made by 
the Commission unless the Commission delegates to a licensing board the 
task of ruling on appeals of NRC staff determinations on requests for 
access to SUNSI or SGI. For this reason, the Part 2 provisions for 
interlocutory appeals and petitions for review would not apply, but 
instead would be replaced by a case-specific provision providing a 
right to appeal to the Commission a licensing board order with respect 
to a request for access to SUNSI or SGI. This case-specific provision 
is modeled after the relevant provisions of 10 CFR 2.311, but because 
of the expedited nature of the proceeding, such an appeal must be filed 
within 10 days of the order, and any briefs in opposition will be due 
within 10 days of the appeal.
    Consistent with the relevant provisions of 10 CFR 2.311, a 
licensing board order denying a request for access to SUNSI or SGI may 
be appealed by the requestor only on the question of whether the 
request should have been granted. A licensing board order granting a 
request for access to SUNSI or SGI may be appealed only on the question 
of whether the request should have been denied in whole or in part. 
However, such a question with respect to SGI may only be appealed by 
the NRC staff, and such a question with respect to SUNSI may be 
appealed only by the NRC staff or by a party whose interest independent 
of the proceeding would be harmed by the release of the information.
11. Licensee Hearing Requests
    In accordance with 10 CFR 2.105(d)(1), a notice of proposed action 
must state that, within the time period provided under 10 CFR 2.309(b), 
the applicant may file a request for a hearing. While this provision 
literally refers to applicants as opposed to licensees, it makes sense 
and accords with the spirit of the rule to provide an equivalent 
opportunity to licensees seeking to operate their plants, which have 
legal rights associated with possessing a license that must be 
protected. The situation giving rise to such a hearing request would be 
a dispute between the licensee and the NRC staff on whether the 
acceptance criteria are met.
    With respect to the contents of a licensee request for hearing, the 
prima facie showing requirement would not apply because the licensee 
would be asserting that the acceptance criteria are met rather than 
asserting that the acceptance criteria have not been, or will not be, 
met. Licensees requesting a hearing would be challenging an NRC staff 
determination that the acceptance criteria are not met; this NRC staff 
determination would be analogous to a prima facie showing that the 
acceptance criteria have not been met. Given this, it seems appropriate 
to require a licensee requesting a hearing to specifically identify the 
ITAAC whose successful completion is being disputed by the NRC staff, 
and to identify the specific issues that are being disputed.
    The Staff does not believe that separate hearing procedures need to 
be developed for a licensee hearing request. Such hearing requests 
should be highly unusual because disputes between the NRC staff and the 
licensee are normally resolved through interactions outside the 
adjudicatory process. Also, many of the hearing procedures described in 
this notice could likely be adapted, with little change, to serve the 
purposes of a hearing requested by a licensee.

B. Procedures for Hearings Involving Testimony

    With the exception of procedures for licensee hearing requests, the 
procedures described previously for

[[Page 21970]]

inclusion with the notice of intended operation would also be included 
in the order setting forth the procedures for hearings involving 
testimony, with the following modifications:
     In the procedures issued with the notice of intended 
operation, additional briefing on licensee-proposed mitigation measures 
would occur only after a decision on the hearing request. However, 
because of the greater need for an expedited decision on interim 
operation for contentions submitted after the hearing request is 
granted, a different process is necessary. Therefore, if the licensee's 
answer addresses proposed mitigation measures to assure adequate 
protection during interim operation, the NRC staff and the proponent of 
the hearing request, intervention petition, or motion for leave to file 
a new or amended contention filed after the original deadline may, 
within 20 days of the licensee's answer, file a response that addresses 
only the effect these proposed mitigation measures would have on 
adequate protection during the period of interim operation.
     The provisions and options described earlier for motions 
for reconsideration under 10 CFR 2.323(e) also apply to petitions for 
reconsideration under 10 CFR 2.345.
     Additional procedures would be imposed regarding 
notifications of relevant new developments related to admitted 
contentions. Specifically, if the licensee notifies the presiding 
officer and the parties of an ITAAC closure notification, an ITAAC 
post-closure notification, or the re-performance of an ITAAC related to 
an admitted contention, then the notice shall state the effect that the 
notice has on the proceeding, including the effect of the notice on the 
evidentiary record, and whether the notice renders moot, or otherwise 
resolves, the admitted contention. This notice requirement applies as 
long as there is a contested proceeding in existence on the relevant 
ITAAC (including any period in which an appeal of an initial decision 
may be filed or during the consideration of an appeal if an appeal is 
filed). Within 7 days of the licensee's notice, the other parties shall 
file an answer providing their views on the effect that the licensee's 
notice has on the proceeding, including the effect of the notice on the 
evidentiary record, and whether the notice renders moot, or otherwise 
resolves, the admitted contention. However, the intervenor is not 
required in this 7-day timeframe to address whether it intends to file 
a new or amended contention. In the interest of timeliness, the 
presiding officer may, in its discretion, take action to determine the 
notice's effect on the proceeding (e.g., hold a prehearing conference, 
set an alternate briefing schedule) before the 7-day deadline for 
answers.
     In addition to an interlocutory appeal as of right for a 
licensing board decision on access to SUNSI or SGI, two options are 
under consideration with respect to whether, and to what extent, there 
should be an additional opportunity to petition for interlocutory 
review. The Staff specifically requests comment on these options. Under 
Option 1, no other requests for interlocutory review of licensing board 
decisions would be entertained. The rationale for this option is that 
interlocutory review of decisions other than on requests for access to 
SUNSI or SGI are unnecessary and unproductive given the expedited 
nature of the proceeding. Under Option 2, the interlocutory review 
provisions of 10 CFR 2.341(f) are retained without modification. 
However, even under Option 2, interlocutory review will be disfavored, 
except in the case of decisions on access to SUNSI or SGI, because of 
the expedited nature of an ITAAC hearing.
    Additional significant procedures that specifically relate to 
hearings involving witness testimony are as follows.
1. Schedule and Format for Hearings Involving Witness Testimony
    As discussed earlier, the Staff proposes a Subpart L-type approach 
to evidentiary hearings that features pre-filed written testimony, an 
oral hearing, and questioning by the presiding officer rather than by 
counsel for the parties.\20\ Two alternative hearing tracks have been 
developed, Track 1 and Track 2, with the only difference between these 
two tracks being whether both pre-filed initial and rebuttal testimony 
are permitted (Track 1) or whether only pre-filed initial testimony is 
permitted (Track 2).
---------------------------------------------------------------------------

    \20\ However, as explained later, there is an opportunity to 
file motions to conduct cross-examination.
---------------------------------------------------------------------------

    The Staff requests comment on the factors the Commission should 
consider in choosing between Track 1 and Track 2 in an individual 
proceeding. Track 2 has a schedule advantage in that it is shorter, and 
pre-filed rebuttal testimony, which is not available under Track 2, 
might not be necessary in some cases. ITAAC hearings are focused on 
specifically delineated issues, and the parties should have, early on, 
at least a basic understanding of the other parties' positions due to 
the availability of the licensee's plans for completing the ITAAC and 
the parties' initial filings, which are expected to be more detailed 
given the required prima facie showing. Pre-filed rebuttal testimony 
might not be necessary in cases where the contested issues and the 
parties' positions are defined well enough to allow the parties to, in 
their initial testimony, advance their own positions while effectively 
rebutting the positions taken by the other parties. Further development 
of the record could be accomplished at the oral hearing, and Track 2 
allows the parties to propose questions to be asked of their own 
witnesses to respond to the other parties' filings (this is a form of 
oral rebuttal). However, if the parties are not able to effectively 
rebut the other parties' positions in their initial filings, then in a 
Track 2 proceeding, the presiding officer likely would not possess a 
complete understanding of the parties' positions until the oral 
hearing. It is important in a Subpart L-type proceeding for the 
presiding officer to have a thorough understanding of the parties' 
positions before the oral hearing to allow the presiding officer to 
formulate focused questions for the witnesses and to reach conclusions 
on the contested issues soon after the hearing is concluded. Therefore, 
if the presiding officer does not have such a thorough understanding by 
the oral hearing due to the absence of pre-filed rebuttal testimony, 
substantial effort toward reaching a decision could be delayed until 
after the hearing is held. This is an argument in favor of using a 
hearing track with pre-filed rebuttal testimony (Track 1) in more 
complex cases.
    To ensure the completion of the hearing by the statutorily-mandated 
goal, the Staff envisions that the Commission would establish a 
``strict deadline'' for the issuance of the initial decision that could 
only be extended upon a showing that ``unavoidable and extreme 
circumstances'' necessitate a delay. If a licensing board is the 
presiding officer, then the licensing board would have the authority to 
extend the strict deadline after notifying the Commission of the 
rationale for its decision. The licensing board would be expected to 
make this notification at the earliest practicable opportunity after 
the licensing board determines that an extension is necessary. In 
addition to this strict deadline, the schedule includes two other types 
of target dates: default deadlines and milestones. ``Default 
deadlines'' are requirements to which the parties must conform, but 
they may be modified by the presiding officer for good cause. Default 
deadlines are used for the completion of certain

[[Page 21971]]

tasks soon after the decision on the hearing request that the parties 
must begin working toward as soon as the hearing request is granted. 
Target dates that have not been designated as a ``strict deadline'' or 
a ``default deadline'' are ``milestones,'' which are not requirements, 
but a licensing board is expected to adhere to milestones to the best 
of its ability in an effort to complete the hearing in a timely 
fashion. The presiding officer may revise the milestones in its 
discretion, with input from the parties, keeping in mind the strict 
deadline for the overall proceeding.
    The Track 1 and Track 2 schedules are reproduced in Table 1.

                                     Table 1--Track 1 and Track 2 Schedules
----------------------------------------------------------------------------------------------------------------
                                          Target date               Target date
              Event               ----------------------------------------------------      Target date type
                                            Track 1                   Track 2
----------------------------------------------------------------------------------------------------------------
Prehearing Conference............  Within 7 days of the      Within 7 days of the      Milestone.
                                    grant of the hearing      grant of the hearing
                                    request.                  request.
Scheduling Order.................  Within 3 days of the      Within 3 days of the      Milestone.
                                    prehearing conference.    prehearing conference.
Document Disclosures;              15 days after the grant   15 days after the grant   Default Deadline.
 Identification of Witnesses; and   of the hearing request.   of the hearing request.
 NRC Staff Informs the Presiding
 Officer and Parties of its
 Decision on Whether to
 Participate as a Party.
Pre-filed Initial Testimony......  35 days after the grant   35 days after the grant   Milestone.
                                    of the hearing request.   of the hearing request.
Pre-filed Rebuttal Testimony.....  15 days after initial     No rebuttal.............  Milestone.
                                    testimony.
Proposed Questions; Motions for    7 days after rebuttal     7 days after initial      Milestone.
 Cross-Examination/Proposed Cross-  testimony.                testimony.
 Examination Plans.
Answers to Motions for Cross-      5 days after the motion   5 days after the motion   Milestone.
 Examination.                       for cross-examination     for cross-examination
                                    OR oral answer to         OR oral answer to
                                    motion presented just     motion presented just
                                    prior to the beginning    prior to the beginning
                                    of the hearing.           of the hearing.
Oral Hearing.....................  15 days after rebuttal    15 days after initial     Milestone.
                                    testimony.                testimony.
Joint Transcript Corrections.....  7 days after the hearing  7 days after the hearing  Milestone.
Findings (if needed).............  15 days after the         15 days after the         Milestone.
                                    hearing or such other     hearing or such other
                                    time as the presiding     time as the presiding
                                    officer directs.          officer directs.
Initial Decision.................  30 days after the         30 days after the         Strict Deadline.
                                    hearing.                  hearing.
----------------------------------------------------------------------------------------------------------------

    The Track 1 schedule takes 95 days (including one day for the oral 
hearing), and the Track 2 schedule takes 80 days (including one day for 
the oral hearing). As stated earlier, the answers to the hearing 
request would be due 125 days before scheduled fuel load. Thus, if the 
Track 1 option is used, the Commission would need to issue the decision 
on the hearing request 30 days after the answers are due in order to 
complete the hearing by scheduled fuel load. If the Track 2 option is 
used, the Commission would need to issue the decision on the hearing 
request 45 days after the answers are due in order to complete the 
hearing by scheduled fuel load. To accommodate both possible hearing 
tracks, the procedures contemplate a Commission ruling 30 days from the 
due date for answers to the hearing request. The Staff recognizes that 
it is possible that one of the two tracks might be eliminated from 
consideration before the issuance of the generic procedures in final 
form. If the Track 1 procedures are eliminated, the Staff contemplates 
that the 15 days gained from eliminating the possibility for rebuttal 
testimony would be distributed to the time periods for rendering a 
decision on the hearing request or issuing an initial decision after 
the hearing given the already short deadlines for these decisions.\21\
---------------------------------------------------------------------------

    \21\ Also, notwithstanding the detailed schedules set forth in 
the hearing tracks, the Commission retains the flexibility to modify 
these dates, as well as the other procedures set forth in this 
notice, on a case-specific basis.
---------------------------------------------------------------------------

    Both the Track 1 and Track 2 hearing schedules are aggressive, but 
this is necessary to satisfy the statutorily-mandated goal for timely 
completion of the hearing. The Staff believes that these schedules are 
feasible and will allow the presiding officer and the parties a fair 
opportunity to develop a sound record for decision. However, it will 
require the parties to schedule their resources such that they will be 
able to provide a high, sustained effort during the last 3-4 months 
before fuel load. The parties are obligated to ensure that their 
representatives and witnesses are available during this period to 
perform all of their hearing-related tasks on time. The competing 
obligations of the parties' representatives or witnesses will not be 
considered good cause for any delays in the schedule.
    The specific provisions governing the evidentiary hearing tasks are 
set forth in detail in Template B. Except for the mandatory disclosure 
requirements, these provisions are drawn from 10 CFR Part 2, Subpart L, 
but are subject to the schedule set forth previously and the following 
significant modifications or additional features:
     The prehearing conference and scheduling order would be 
expected to occur soon after the hearing request is granted. To meet 
this schedule, the Staff envisions that a licensing board would be 
designated well before the decision on the hearing request so that this 
licensing board would be familiar with the record and disputed issues 
and would be able to immediately commence work on evidentiary hearing 
activities once the hearing request is granted.
     Other than a joint motion to dismiss supported by all of 
the parties, motions to dismiss and motions for summary disposition are 
prohibited. The time frame for the hearing is already time-limited, and 
the resources necessary to prepare, review, and rule on a motion to 
dismiss or motion for summary disposition would take time away from 
preparing for the hearing and likely would not outweigh the potential 
for error should it later be decided on appeal that a hearing was 
warranted.

[[Page 21972]]

     Written statements of position may be filed in the form of 
proposed findings of fact and conclusions of law. Doing so would allow 
the parties to draft their post-hearing findings of fact and 
conclusions of law by updating their pre-hearing filings. Also, if the 
parties choose this option, the presiding officer should consider 
whether it might be appropriate to dispense with the filing of written 
findings of fact and conclusions of law after the hearing.
     Written motions in limine or motions to strike \22\ will 
not be permitted because such motions would lead to delay without 
compensating benefit. The parties' evidentiary submissions are expected 
to be narrowly focused on the discrete technical issues that would be 
the subject of the admitted contentions, and the presiding officer is 
capable of judging the relevance and persuasiveness of the arguments, 
testimony, and evidence without excluding them from the record. In 
addition, the parties' rights will be protected because they will have 
an opportunity to address the relevance or admissibility of arguments, 
testimony, or evidence in their pre- and post-hearing filings, or at 
the hearing.
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    \22\ Collectively, written motions in limine and motions to 
strike are written motions to exclude another party's arguments, 
testimony, or evidence.
---------------------------------------------------------------------------

     Consistent with 10 CFR 2.1204(b)(3), cross-examination by 
the parties shall be allowed only if it is necessary to ensure the 
development of an adequate record for decision. Cross-examination 
directed at persons providing eyewitness testimony would be allowed 
upon request. The expectation is that the presiding officer will 
closely manage and control cross-examination. The presiding officer 
need not, and should not, allow cross-examination to continue beyond 
the point at which it is useful. Similarly, in the sound exercise of 
its discretion, the presiding officer need not ask all (or any) 
questions that the parties request the presiding officer to consider 
propounding to the witnesses.
     Written answers to motions for cross-examination would be 
due 5 days after the filing of the motion, or, alternatively, if travel 
arrangements for the hearing interfere with the ability of the parties 
and the presiding officer to file or receive documents, an answer may 
be delivered orally at the hearing location just prior to the start of 
the hearing.\23\ At the prehearing conference, the presiding officer 
and the parties would address whether answers to motions for cross-
examination will be in written form or be delivered orally.
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    \23\ Because cross-examination plans are filed non-publicly, 
answers to cross-examination motions would only address the public 
motion, which would likely include less detail. This justifies the 
shorter deadline for answers and the reasonableness of having 
answers be delivered orally.
---------------------------------------------------------------------------

     With respect to proposed findings of fact and conclusions 
of law, the Staff recognizes that proposed findings of fact and 
conclusions of law may assist the presiding officer in reaching its 
decision in certain cases or on certain issues, but the Staff also 
recognizes that there may be cases or issues for which proposed 
findings of fact and conclusions of law are unnecessary and may cause 
delay. Therefore, the Staff is considering and requesting comment on 
the following two options. Option 1 would allow proposed findings of 
fact and conclusions of law unless the presiding officer, on its own 
motion or upon a joint agreement of all the parties, dispenses with 
proposed findings of fact and conclusions of law for some or all of the 
hearing issues. Option 2 would not permit proposed findings of fact and 
conclusions of law unless the presiding officer determines that they 
are necessary. Under Option 2, the presiding officer may limit the 
scope of proposed findings of fact and conclusions of law to certain 
specified issues.
2. Mandatory Disclosures/Role of the NRC Staff
    The Staff believes that discovery should be limited to the 
mandatory disclosures required by 10 CFR 2.336(a), with certain 
modifications. The required disclosures, pre-filed testimony and 
evidence, and the opportunity to submit proposed questions should 
provide a sufficient foundation for the parties' positions and the 
presiding officer's ruling, as they do in other informal NRC 
adjudications. Any information that might be gained by conducting 
formal discovery under 10 CFR Part 2, Subpart G, likely would not 
justify the time and resources necessary to gain that information, 
particularly considering the limited time frame in which an ITAAC 
hearing must be conducted. Accordingly, depositions, interrogatories, 
and other forms of discovery provided under 10 CFR Part 2, Subpart G, 
would not be permitted. Modifications to the mandatory disclosure 
requirements of 10 CFR 2.336 would be as follows:
     For the sake of simplicity, NRC staff disclosures would be 
based on the provisions of 10 CFR 2.336(a), as modified for ITAAC 
hearings, rather than on Sec.  2.336(b). The categories of documents 
covered by Sec.  2.336(a) and Sec.  2.336(b) are likely to be the same 
in the ITAAC hearing context, and it is reasonable in an ITAAC hearing 
to impose a witness identification requirement on the NRC staff with 
its initial disclosures since initial testimony is due soon after the 
initial disclosures.
     The witness identification requirement of 10 CFR 2.336(a) 
is clarified to explicitly include potential witnesses whose knowledge 
provides support for a party's claims or positions in addition to 
opinion witnesses.
     All parties would provide disclosures of documents 
relevant to the admitted contentions and the identification of fact and 
expert witnesses within 15 days of the granting of the hearing request. 
This short deadline is necessary to support the expedited ITAAC hearing 
schedule. In addition, it is expected that the parties will be able to 
produce document disclosures and identify witnesses within 15 days of 
the granting of the hearing request because of the focused nature of an 
ITAAC hearing and because the parties will have already compiled much 
of the information subject to disclosure in order to address the prima 
facie showing requirement for ITAAC hearing requests.
     Disclosure updates will be due every 14 days (instead of 
monthly) to support the expedited ITAAC hearing schedule.
     The Subpart L provisions for NRC staff participation as a 
party are retained, but the procedures in this notice also provide that 
the Commission may direct the NRC staff to participate as a party in 
the Commission order imposing hearing procedures.
    In addition to the disclosure provisions of 10 CFR 2.336(a), the 
provisions of the SUNSI-SGI Access Order would apply to all 
participants (including admitted parties) \24\ subject to the following 
modifications/clarifications:
---------------------------------------------------------------------------

    \24\ In other proceedings, the provisions of the SUNSI-SGI 
Access Order do not apply to admitted parties, as explained in South 
Texas Project Nuclear Operating Co. (South Texas Project, Units 3 
and 4), CLI-10-24, 72 NRC 451, 461-62 (2010). However, an ITAAC 
hearing differs from most NRC proceedings because there would be no 
hearing file, and disclosures would be limited to those documents 
relevant to the admitted contentions. As explained in the South 
Texas Project decision (CLI-10-24, 72 NRC at 462 n.70), broader 
disclosure and hearing file requirements provide information to 
parties to support new contentions. Because the disclosures process 
in an ITAAC hearing does not allow admitted parties to access SUNSI 
or SGI for the purposes of formulating contentions unrelated to 
admitted contentions, it makes sense to apply the provisions of the 
SUNSI-SGI Access Order to admitted parties.
---------------------------------------------------------------------------

     For a party seeking access to SUNSI or SGI relevant to the 
admitted contentions, the 10 CFR 2.336(a) disclosures process will be 
used in lieu

[[Page 21973]]

of the SUNSI-SGI Access Order. As part of the disclosures process, a 
party seeking SUNSI or SGI related to an admitted contention would 
first seek access from the party possessing the SUNSI or SGI. Any 
disputes among the parties over access to SUNSI would be resolved by 
the presiding officer, and any disputes over access to SGI would be 
resolved in accordance with 10 CFR 2.336(f).
     The timeliness standard for requests for access is the 
later of (a) 10 days from the date that the existence of the SUNSI or 
SGI document becomes public information, or (b) 10 days from the 
availability of new information giving rise to the need for the SUNSI 
or SGI to formulate the contention.
     Any contentions based on SUNSI or SGI obtained pursuant to 
the SUNSI-SGI Access Order must be filed within 25 days of the receipt 
of the SUNSI or SGI, except that if the Commission chooses a time 
period for new or amended contentions filed after the original deadline 
that is less than 25 days, then that reduced time period will be used 
instead of 25 days, as explained earlier in this notice.
    As for the 10 CFR 2.1203 hearing file that the NRC staff is 
obligated to produce in Subpart L proceedings, the Staff is not 
recommending that this requirement be made applicable to ITAAC hearings 
because the more narrowly defined NRC disclosure provisions discussed 
previously are sufficient to disclose all relevant documents. The scope 
of an ITAAC hearing is narrowly focused on whether the acceptance 
criteria in the pre-approved ITAAC are met, unlike other NRC 
adjudications that involve the entire combined license application. And 
unlike other NRC adjudicatory proceedings that may involve numerous 
requests for additional information, responses to requests for 
additional information, and revisions to the application, an ITAAC 
hearing will focus on licensee ITAAC notifications and related NRC 
staff review documents that would be referenced in a centralized 
location on the NRC Web site. Consequently, it is unlikely in an ITAAC 
hearing that a member of the public would obtain useful documents 
through the hearing file required by 10 CFR 2.1203 that it would not 
obtain through other avenues.
3. Certified Questions/Referred Rulings
    The Staff recognizes that there may be unusual cases that merit a 
certified question or referred ruling from the licensing board, 
notwithstanding the potential for delay. Therefore, the provisions 
regarding certified questions or referred rulings in 10 CFR 2.323(f) 
and 2.341(f)(1) apply to ITAAC hearings. However, the proceeding would 
not be stayed by the licensing board's referred ruling or certified 
question. Where practicable, the licensing board should first rule on 
the matter in question and then seek Commission input in the form of a 
referred ruling to minimize delays in the proceeding during the 
pendency of the Commission's review.

C. Procedures for Hearings Not Involving Testimony (Legal Contentions)

    Admitted contentions that solely involve legal issues would be 
resolved based on written legal briefs. The briefing schedule would be 
determined by the Commission on a case-by-case basis. In the order 
imposing procedures for the resolution of these contentions, the 
Commission would designate either itself, a licensing board, or a 
single legal judge (assisted as appropriate by technical advisors) as 
the presiding officer for issuing a decision on the briefs. The 
Commission would impose a strict deadline for a decision on the briefs 
by the presiding officer. If a licensing board or single legal judge is 
the presiding officer, then additional procedures would be included. 
The presiding officer would have the discretion to hold a prehearing 
conference to discuss the briefing schedule and to discuss whether oral 
argument is needed, but a decision to hold oral argument would not 
change the strict deadline for the presiding officer's decision. In 
addition, the applicable hearing procedures from Template B for 
hearings involving witness testimony would be included in the 
Commission's order imposing procedures for legal contentions with the 
exception of those procedures involving testimony (and with the 
exception of those procedures involving interactions between the 
Commission and a licensing board or single legal judge if the 
Commission designates itself as the presiding officer).

D. Procedures for Resolving Claims of Incompleteness

    If the Commission determines that the petitioner has submitted a 
valid claim of incompleteness, then it would issue an order that would 
require the licensee to provide the additional information within 10 
days (or such other time as specified by the Commission) and provide a 
process for the petitioner to file a contention based on the additional 
information. This contention and any answers to it would be subject to 
the requirements for motions for leave to file new or amended 
contentions after the original deadline that are described earlier and 
included in Template B. If the petitioner files an admissible 
contention thereafter, and all other hearing request requirements have 
been met, then the hearing request would be granted and an order 
imposing procedures for resolving the admitted contention would be 
issued. If the petitioner submits another claim of incompleteness 
notwithstanding the additional information provided by the licensee, it 
shall file its request with the Commission. Any additional claims of 
incompleteness would be subject to the timeliness requirements for 
motions for leave to file claims of incompleteness after the original 
deadline that are described previously and included in Template B. 
Finally, the Commission order imposing procedures for resolving claims 
of incompleteness would include the applicable procedures from Template 
B, with the exception of procedures related to already-admitted 
contentions and procedures related to interactions between the 
Commission and a licensing board or single legal judge.

VII. Availability of Documents

    The NRC is making the documents identified in the following table 
available to interested persons through the following methods as 
indicated.

------------------------------------------------------------------------
                   Document                       ADAMS  Accession No.
------------------------------------------------------------------------
Template A ``Notice of Intended Operation and  ML14097A460
 Associated Orders''.
Template B ``Procedures for Hearings           ML14097A468
 Involving Testimony''.
Template C ``Procedures for Hearings Not       ML14097A471
 Involving Testimony''.
Template D ``Procedures for Resolving Claims   ML14097A476
 of Incompleteness''.
Vogtle Unit 3 Combined License, Appendix C...  ML112991102
SECY-13-0033, ``Allowing Interim Operation     ML12289A928
 Under Title 10 of the Code of Federal
 Regulations Section 52.103'' (April 4, 2013).
SRM on SECY-13-0033 (July 19, 2013)..........  ML13200A115

[[Page 21974]]

 
Anthony Z. Roisman, Comments on Proposed       ML11119A231
 Amendments to Adjudicatory Process Rules and
 Related Requirements (76 FR 10781) (April
 26, 2011).
Letter from Diane Curran to NRC                ML13057A975
 Commissioners, Comments on NRC Public
 Participation Process (February 26, 2013).
Procedures to Allow Potential Intervenors to   ML080380626
 Gain Access to Relevant Records that Contain
 Sensitive Unclassified Non-Safeguards
 Information or Safeguards Information
 (February 29, 2008).
------------------------------------------------------------------------

    The NRC will post documents related to this notice, including 
public comments, on the Federal rulemaking Web site at https://www.regulations.gov under Docket ID NRC-2014-0077. The Federal 
rulemaking Web site allows you to receive alerts when changes or 
additions occur in a docket folder. To subscribe: (1) Navigate to the 
docket folder (NRC-2014-0077); (2) click the ``Email Alert'' link; and 
(3) enter your email address and select how frequently you would like 
to receive emails (daily, weekly, or monthly).

VIII. Plain Language Writing

    The Plain Writing Act of 2010 (Pub. L. 111-274) requires Federal 
agencies to write documents in a clear, concise, well-organized manner 
that also follows other best practices appropriate to the subject or 
field and the intended audience. The NRC has attempted to use plain 
language in developing these general procedures, consistent with the 
Federal Plain Writing Act guidelines.

    Dated at Rockville, Maryland, this 10th day of April 2014.

    For the Nuclear Regulatory Commission.
Marian Zobler,
Acting General Counsel.
[FR Doc. 2014-08917 Filed 4-17-14; 8:45 am]
BILLING CODE 7590-01-P