Vogtle Electric Generating Plant, Unit 3; Hearing Opportunity Associated With Inspections, Tests, Analyses, and Acceptance Criteria, 8030-8045 [2020-02443]

Agencies

• NUCLEAR REGULATORY COMMISSION

[Federal Register Volume 85, Number 29 (Wednesday, February 12, 2020)]
[Notices]
[Pages 8030-8045]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-02443]


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NUCLEAR REGULATORY COMMISSION

[Docket No. 52-025; NRC-2008-0252]


Vogtle Electric Generating Plant, Unit 3; Hearing Opportunity 
Associated With Inspections, Tests, Analyses, and Acceptance Criteria

AGENCY: Nuclear Regulatory Commission.

ACTION: Notice of intended operation; opportunity for hearing on 
conformance with the acceptance criteria in the combined license; and 
associated orders.

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SUMMARY: By letter dated January 13, 2020, Southern Nuclear Operating 
Company (SNC) informed the U.S. Nuclear Regulatory Commission (NRC) 
that its scheduled date for initial loading of fuel into the reactor 
for Vogtle Electric Generating Plant (VEGP) Unit 3 is November 23, 
2020. The Atomic Energy Act of 1954, as amended (AEA), and NRC 
regulations provide the public with an opportunity to request a hearing 
regarding the licensee's conformance with the acceptance criteria in 
the combined license for the facility. This document announces the 
public's opportunity to request a hearing and includes orders imposing 
procedures for the hearing process.

DATES: A request for a hearing must be filed by April 13, 2020. Any 
potential party as defined in section 2.4 of title 10 of the Code of 
Federal Regulations (10 CFR), who believes access to Sensitive 
Unclassified Non-Safeguards Information (SUNSI) or Safeguards 
Information (SGI) is necessary for

[[Page 8031]]

contention preparation must request access by February 24, 2020.

ADDRESSES: Please refer to Docket ID NRC-2008-0252 or NRC Docket No. 
52-025 when contacting the NRC about the availability of information 
regarding this document. You may obtain publicly-available information 
related to this document using any of the following methods:
     Federal Rulemaking Website: Go to https://www.regulations.gov and search for Docket ID NRC-2008-0252. Address 
questions about NRC dockets IDs in Regulations.gov to Jennifer Borges; 
telephone: 301-287-9127; email: [email protected]. For technical 
questions, contact the individual listed in the FOR FURTHER INFORMATION 
CONTACT section of this document.
     NRC's Agencywide Documents Access and Management System 
(ADAMS): You may obtain publicly-available documents online in the 
ADAMS Public Documents collection at https://www.nrc.gov/reading-rm/adams.html. To begin the search, 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 [email protected]. The ADAMS accession number for each 
document referenced (if it is available in ADAMS) is provided the first 
time that it is mentioned in this document.
     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.
    The inspections, tests, analyses, and acceptance criteria (ITAAC) 
for this combined license, the licensee's ITAAC closure notifications, 
uncompleted ITAAC notifications, and ITAAC post-closure notifications; 
associated NRC inspection and review documents; and other supporting 
documents pertaining to ITAAC closure for VEGP Unit 3 are available 
electronically at https://www.nrc.gov/reactors/new-reactors/col-holder/vog3.html.

FOR FURTHER INFORMATION CONTACT: Cayetano Santos, Office of Nuclear 
Reactor Regulation (NRR), U.S. Nuclear Regulatory Commission, 
Washington, DC 20555-0001; telephone: 301-415-7270, email: 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Introduction

    Pursuant to the AEA, and the regulations in 10 CFR part 2, ``Agency 
Rules of Practice and Procedure,'' and 10 CFR part 52, ``Licenses, 
Certifications, and Approvals for Nuclear Power Plants,'' notice is 
hereby given that (1) the licensee intends to operate VEGP Unit 3; (2) 
the NRC is considering whether to find that the acceptance criteria in 
the combined license (COL) are met; and (3) interested persons have an 
opportunity to request a hearing regarding conformance with the 
acceptance criteria. This notice is accompanied by an ``Order Imposing 
Additional Procedures for ITAAC Hearings Before a Commission Ruling on 
the Hearing Request'' (Additional Procedures Order) and an ``Order 
Imposing Procedures for Access to Sensitive Unclassified Non-Safeguards 
Information [SUNSI] and Safeguards Information [SGI] for Contention 
Preparation'' (SUNSI-SGI Access Order).

A. Information on SNC's Intent To Operate VEGP Unit 3 and on the 
Hearing Opportunity Associated With Facility Operation

    SNC was issued a COL for VEGP Unit 3 on February 10, 2012. Under 
the provisions of Section 185b. of the AEA and NRC regulations in 10 
CFR 52.97(b), ITAAC are included in a COL for the purpose of 
establishing a means to verify whether the facility has been 
constructed and will be operated in conformance with the license, the 
AEA, and NRC rules and regulations. The ITAAC are included as Appendix 
C to the COL. Section 185b. of the AEA requires that, after issuance of 
the COL, the Commission shall ensure that the prescribed inspections, 
tests, and analyses are performed and, prior to operation of the 
facility, shall find that the prescribed acceptance criteria are met. 
This AEA requirement is also set forth in 10 CFR 52.103(g), which 
expressly provides that operation of the facility may not begin unless 
and until the NRC finds that the acceptance criteria for all ITAAC are 
met as required by 10 CFR 52.103(g). Once the 10 CFR 52.103(g) finding 
is made, the licensee may proceed to the operational phase, which 
includes initial fuel load.
    The NRC is considering whether to make the 10 CFR 52.103(g) finding 
that the acceptance criteria for all ITAAC are met. Prior to making 
this finding, Section 189a.(1)(B)(i) of the AEA provides that the NRC 
shall publish in the Federal Register a notice of intended operation 
that shall 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. In 
the licensee's notification dated January 13, 2020 (ADAMS Accession No. 
ML20013F991), the licensee informed the NRC that its scheduled date for 
initial loading of fuel into the reactor is November 23, 2020.

B. Information on SNC's Completion of ITAAC

    For every ITAAC, the licensee is required by 10 CFR 52.99(c)(1) to 
submit to the NRC an ITAAC closure notification 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. If an event occurring after 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 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 provide sufficient information, including 
the specific procedures and analytical methods to be used in performing 
the ITAAC, to demonstrate that the uncompleted inspections, tests, and 
analyses will be performed and the corresponding acceptance criteria 
will be met. 10 CFR 52.99(c)(3). The licensee has submitted the 
uncompleted ITAAC notifications earlier than required, and these 
notifications cover all ITAAC not completed as of 315 days prior to 
scheduled fuel load.\1\ These uncompleted ITAAC notifications provide 
information to members of the public for the purposes of requesting a 
hearing and submitting contentions on uncompleted ITAAC within the 
required time frames. In the final rule entitled ``Licenses, 
Certifications, and Approvals for Nuclear Power Plants'' (72 FR 49367; 
August 28, 2007), the Commission stated that it ``expects that any 
contentions submitted by prospective parties regarding

[[Page 8032]]

uncompleted ITAAC would focus on any inadequacies of the specific 
procedures and analytical methods described by the licensee'' in its 
uncompleted ITAAC notification.
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    \1\ The licensee's cover letter for the uncompleted ITAAC 
notifications is available at ADAMS Accession No. ML200013F132.
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    Members of the public must submit hearing requests by the deadline 
specified in this notice, and the hearing request must address any 
deficiencies with respect to uncompleted ITAAC based on the information 
available to the petitioner, including the uncompleted ITAAC 
notifications required by 10 CFR 52.99(c)(3).\2\ Members of the public 
may not defer the submission of hearing requests or contentions because 
there are ITAAC that have not yet been completed. The licensee must 
submit an ITAAC closure notification pursuant to 10 CFR 52.99(c)(1) 
after it completes these uncompleted ITAAC.
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    \2\ As used in this notice and in the associated orders, the 
term ``petitioner'' refers to any person who (1) is contemplating 
the filing of a hearing request, (2) has filed a hearing request but 
is not admitted as a party to this proceeding, or (3) has had a 
hearing request granted.
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    The supporting documents pertaining to ITAAC closure for VEGP Unit 
3 are available electronically at https://www.nrc.gov/reactors/new-reactors/col-holder/vog3.html. These include the ITAAC and the 
licensee's ITAAC closure notifications, uncompleted ITAAC 
notifications, and any ITAAC post-closure notifications. The licensee 
has not yet submitted the 10 CFR 52.99(c)(4) ``all ITAAC complete 
notification'' required under 10 CFR 52.99(c)(4). This notification 
will be included at https://www.nrc.gov/reactors/new-reactors/col-holder/vog3.html when it is submitted. If a petitioner wishes to 
compare a subsequent ITAAC closure notification with an earlier 
uncompleted ITAAC notification on the same ITAAC, then the petitioner 
should first locate the ITAAC index number for that ITAAC in the ITAAC 
closure notification. ITAAC index numbers run from 1 to 875.\3\ Then, 
the petitioner should access the ITAAC Status Report, available at 
https://www.nrc.gov/reactors/new-reactors/col-holder/vog3.html, and 
locate the ITAAC index number entry in the report. Each ITAAC index 
number entry includes links to ITAAC notifications associated with that 
ITAAC, including the uncompleted ITAAC notifications and the ITAAC 
closure notifications.\4\
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    \3\ Because ITAAC have been deleted or consolidated through 
license amendments, there are fewer than 875 ITAAC in the COL.
    \4\ To reduce burdens on petitioners, the NRC staff has 
streamlined the ITAAC Status Report by removing those ITAAC 
notifications that have been entirely superseded by later ITAAC 
notifications on the same ITAAC. These superseded ITAAC 
notifications are still available in ADAMS.
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    The ITAAC Status Report also includes links to NRC inspection 
reports and ITAAC Closure Verification Evaluation Forms generated by 
the NRC staff and citations to periodically issued Federal Register 
notices of the NRC staff's determinations that certain inspections, 
tests, and analyses have been successfully completed. The NRC staff 
determinations made in these documents are interim determinations that 
do not become final unless and until the NRC makes the 10 CFR 52.103(g) 
finding at the end of construction that all acceptance criteria are 
met. The 10 CFR 52.103(g) finding, which will be made by the Director 
of NRR if all the acceptance criteria are met, will be accompanied by a 
document providing the rationale supporting the 10 CFR 52.103(g) 
finding. As stated in NRR Office Instruction LIC-114 (ADAMS Accession 
No. ML18267A182), the staff intends to make the 10 CFR 52.103(g) 
finding within 17 days of the licensee submitting the ``all ITAAC 
complete notification'' if all prerequisites for this finding are met.
    The ITAAC Status Report will be periodically updated to reflect the 
submission of additional licensee ITAAC notifications and future NRC 
inspection reports and review documents. In addition, to provide 
additional background information to members of the public, https://www.nrc.gov/reactors/new-reactors/col-holder/vog3.html includes other 
supporting documents, such as the final safety analysis report for the 
facility, the NRC's final safety evaluation report for the COL review, 
and the design control document for the AP1000 design certification, 
which the facility references. Although the ITAAC Status Report and 
https://www.nrc.gov/reactors/new-reactors/col-holder/vog3.html will be 
periodically updated to reflect new information, there may be relevant 
documents (including licensee ITAAC notifications) that have been 
submitted or created after the most recent update and are publicly 
available in ADAMS. To search for documents in ADAMS using the VEGP 
Unit 3 docket number, 52-025, one should enter the term ``05200025'' in 
the ``Docket Number'' field when using the web-based search (advanced 
search) engine in ADAMS.
    The licensee has submitted a partial ITAAC closure notification; 
this notification addresses partial closure of individual ITAAC for 
which additional work remains before the ITAAC will be fully closed. 
Partial ITAAC closure notification(s) are indicated in the ITAAC Status 
Report available at https://www.nrc.gov/reactors/new-reactors/col-holder/vog3.html. When these ITAAC are fully closed, the licensee will 
submit a complete ITAAC closure notification to the NRC; this 
notification will be available in the ITAAC Status Report. ITAAC for 
which a partial ITAAC closure notification has been submitted continue 
to be considered uncompleted and are subject to an uncompleted ITAAC 
notification until they are fully completed and closed.
    SNC provided numerous uncompleted ITAAC notifications earlier than 
required; the staff was therefore able to review these notifications, 
which contributed to the ITAAC closure process. The staff's review of 
an uncompleted ITAAC notification focuses on the ITAAC completion 
methodology described in the notification and is documented in an 
Uncompleted ITAAC Notification Checklist; these checklists are 
available in the ITAAC Status Report.
    In accordance with 10 CFR 2.105(b)(3)(iv), the notice of intended 
operation must identify any conditions, limitations, or restrictions to 
be placed on the license in connection with the finding under 10 CFR 
52.103(g), and the expiration date or circumstances (if any) under 
which the conditions, limitations or restrictions will no longer apply. 
As of the date of this notice, the NRC staff has not identified any 
such conditions, limitations, or restrictions.

II. Hearing Requests

    Any person whose interest may be affected by this proceeding and 
who desires to participate as a party to this proceeding must file a 
hearing request with the NRC. This section sets forth the requirements 
for requesting a hearing on whether acceptance criteria in the combined 
license for VEGP Unit 3 have been or will be met. This section 
references the requirements for hearing requests found in 10 CFR 2.309, 
``Hearing requests, Petitions to Intervene, Requirements for Standing, 
and Contentions,'' with certain additional procedures included in the 
orders issued with this notice. Interested persons should consult 10 
CFR 2.309, which is available at the NRC's PDR and electronically from 
the NRC Library on the NRC website at https://www.nrc.gov/reading-rm.html. All hearing requests must be filed in accordance with the 
filing instructions in Section III of this notice.

[[Page 8033]]

A. A Hearing Request Must Show Standing

    As required by 10 CFR 2.309(d), a hearing request shall show 
standing by setting forth with particularity the interest of the 
petitioner in the proceeding and how that interest may be affected by 
the results of the proceeding. The hearing request must provide the 
name, address, and telephone number of the petitioner and specifically 
explain the reasons why intervention should be permitted with 
particular reference to the following factors: (1) The nature of the 
petitioner's right under the AEA to be made a party to the proceeding; 
(2) the nature and extent of the petitioner's property, financial, or 
other interest in the proceeding; and (3) the possible effect of any 
decision or order that may be entered in the proceeding on the 
petitioner's interest. Discretionary intervention pursuant to 10 CFR 
2.309(e) does not apply to this proceeding because 10 CFR 2.309(a) 
requires a showing of standing and contention admissibility in an ITAAC 
hearing, and 10 CFR 2.309(a) does not provide a discretionary 
intervention exception for hearings under 10 CFR 52.103 as it provides 
for other proceedings.

B. A Hearing Request Must Include an Admissible Contention

    A hearing request must also include the contentions that the 
petitioner seeks to have litigated in the hearing. The contention 
standards for an ITAAC hearing under 10 CFR 52.103(b), which are in 
some respects different from the contention standards in other NRC 
proceedings, are as follows.
    For each contention, the petitioner must meet the following 
requirements from 10 CFR 2.309(f)(1)(i) through (v) and (vii): \5\
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    \5\ The requirements of 10 CFR 2.309(f)(1)(vi) do not apply to 
this proceeding.
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     Provide a specific statement of the issue of law or fact 
to be raised or controverted, as required by 10 CFR 2.309(f)(1)(i). The 
issue of law or fact to be raised must be directed at demonstrating 
that one or more of the acceptance criteria in the COL 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; \6\
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    \6\ In accordance with 10 CFR 51.108, the Commission will not 
admit any contentions on environmental issues in this proceeding, 
and the NRC is not making any environmental finding in connection 
with a finding under 10 CFR 52.103(g) that the acceptance criteria 
are met.
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     Provide a brief explanation of the basis for the 
contention, as required by 10 CFR 2.309(f)(1)(ii);
     Demonstrate that the issue raised by each contention is 
within the scope of the proceeding and is material to the 10 CFR 
52.103(g) finding, as required by 10 CFR 2.309(f)(1)(iii) and (iv);
     Include a concise statement of the alleged facts or expert 
opinions that support the petitioner's position and on which the 
petitioner intends to rely at hearing, together with references to the 
specific sources and documents on which the petitioner intends to rely, 
as required by 10 CFR 2.309(f)(1)(v); and
     Submit sufficient information showing, prima facie, that 
one or more of the acceptance criteria in the COL 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, as required by 10 
CFR 2.309(f)(1)(vii). This information must include the specific 
portion of the notification required by 10 CFR 52.99(c) that the 
petitioner believes is inaccurate, incorrect, and/or incomplete (i.e., 
fails to contain the necessary information required by Sec.  
52.99(c)).\7\
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    \7\ Consistent with 10 CFR 2.309(f)(1)(vii), a purported 
incompleteness in the 10 CFR 52.99(c) notification might be the 
basis for a petitioner's prima facie showing. However, if the 
petitioner believes that the purported incompleteness prevents the 
petitioner from making the necessary prima facie showing, then the 
petitioner may submit a claim of incompleteness as described later 
in this section.
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    As provided in the Additional Procedures Order issued with this 
notice, any declarations of eyewitnesses or expert witnesses offered in 
support of contention admissibility need 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.
    Because the licensee references the AP1000 design certification 
rule (10 CFR part 52, Appendix D), the provisions in this design 
certification rule pertaining to proceedings under 10 CFR 52.103 also 
apply to hearing requests and contentions submitted in this proceeding. 
These provisions include 10 CFR part 52, Appendix D, Sections VI, 
VIII.B.5.g, and VIII.C.5.

C. Claims of Incompleteness

    If the petitioner identifies a specific portion of the Sec.  
52.99(c) notification as incomplete and contends that the incomplete 
portion prevents the petitioner from making the necessary prima facie 
showing, then 10 CFR 2.309(f)(1)(vii) requires the petitioner to 
explain why this deficiency prevents the petitioner from making the 
prima facie showing. Such a claim is called a ``claim of 
incompleteness.'' The process for claims of incompleteness is intended 
to address situations in which the licensee's 10 CFR 52.99(c) 
notification is incomplete (i.e., fails to contain the necessary 
information required by Sec.  52.99(c)) and this incompleteness 
prevents the petitioner from making the necessary prima facie showing 
with respect to one or more aspects of 10 CFR 2.309(1)(i) through (v) 
and (vii).\8\ To establish a valid claim of incompleteness, the 
petitioner (1) must specifically identify the portion of the 10 CFR 
52.99(c) notification that the petitioner asserts is incomplete, (2) 
must provide an adequately supported showing that the 10 CFR 52.99(c) 
notification fails to include information required by 10 CFR 52.99(c), 
and (3) must provide an adequately supported explanation of why this 
deficiency prevents the petitioner from making the necessary prima 
facie showing.\9\ This explanation must include a demonstration that 
the allegedly missing information is reasonably calculated to support a 
prima facie showing.
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    \8\ 10 CFR 2.309(f)(1)(i) through (v) are essential elements in 
making the prima facie showing required by the AEA and NRC 
regulations, and it is conceivable that an incompleteness in the 
licensee's 10 CFR 52.99(c) notification would prevent the petitioner 
from satisfying the elements in 10 CFR 2.309(f)(1)(i) through (v).
    \9\ For claims of incompleteness, the ``incompleteness'' refers 
to a lack of required information in a licensee's ITAAC 
notification, not to whether the ITAAC has yet to be completed. 
Thus, a valid claim of incompleteness with respect to an uncompleted 
ITAAC notification must identify, among other things, an 
insufficient description in the notification of how the licensee 
will successfully complete the ITAAC.
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    However, the petitioner's ability to file a claim of incompleteness 
does not obviate the need for the petitioner to show standing and, to 
the extent it can based on the available information, satisfy the 
contention requirements. Thus, the petitioner must make all of its 
claims regarding the ITAAC and satisfy the contention admissibility 
requirements of 10 CFR 2.309(f)(1)(i) through (v) and (vii) in its 
hearing request to the extent possible but for the petitioner's claim 
of incompleteness. A claim of incompleteness does not toll a

[[Page 8034]]

petitioner's obligation to make a timely prima facie showing. If the 
petitioner is unsure whether to file a contention or a claim of 
incompleteness on an ITAAC notification, the petitioner can submit both 
a contention and a claim of incompleteness at the same time, arguing in 
the alternative that if the contention is not admissible, then the 
claim of incompleteness is valid.
    In addition, to the extent that a petitioner is able to make a 
prima facie showing with respect to one aspect of an ITAAC, it must do 
so even if there is a different aspect of the ITAAC for which a prima 
facie showing cannot be made because of an incompleteness in the 
licensee's 10 CFR 52.99(c) notification. Furthermore, because the prima 
facie showing must address two issues--conformance with the acceptance 
criteria and whether the operational consequences of nonconformance are 
contrary to reasonable assurance of adequate protection of the public 
health and safety--a valid claim of incompleteness must either explain 
why the incompleteness in the 10 CFR 52.99(c) notification prevents the 
petitioner from making the prima facie showing with respect to both 
issues, or the petitioner must make the prima facie showing with 
respect to one issue and explain why the incompleteness in the 10 CFR 
52.99(c) notification prevents the petitioner from making the prima 
facie showing with respect to the other issue.
    To expedite the proceeding and prevent the unnecessary expenditure 
of resources that might occur from litigating claims of incompleteness 
that could have been resolved through negotiation, the Commission is 
requiring consultation between the petitioner and the licensee 
regarding information purportedly missing from the licensee's 10 CFR 
52.99(c) ITAAC notifications. This consultation must occur in a timely 
fashion prior to the filing of any claim of incompleteness. 
Specifically, the petitioner must initiate consultation with the 
licensee regarding any claims of incompleteness within 21 days of the 
notice of intended operation for all ITAAC notifications that were 
publicly available (or for which a redacted version was publicly 
available) when the notice of intended operation was published. If the 
ITAAC notification (or a redacted version thereof) becomes publicly 
available after the notice of intended operation is published, then the 
petitioner must initiate consultation with the licensee regarding any 
claims of incompleteness on such notifications within 7 days of the 
notification (or a redacted version thereof) becoming available to the 
public, except that consultation need not be commenced earlier than 21 
days after publication of the notice of intended operation. If 
agreement is not reached before the deadline for filing the claim of 
incompleteness, then the petitioner must file the claim of 
incompleteness by the required deadline. Further requirements regarding 
consultation on claims of incompleteness, including requirements 
related to SUNSI or SGI and to deadlines for filing contentions once 
access to information is granted, are in Section II.B.2 of the 
Additional Procedures Order issued with this notice.
    If the Commission determines that the petitioner has submitted a 
valid claim of incompleteness, then it will issue an order requiring 
the licensee to provide the additional information and setting forth a 
schedule for the petitioner to file a contention that meets the prima 
facie standard based on the additional information. If the petitioner 
files an admissible contention thereafter, and all other hearing 
request requirements (e.g., standing) have been met, then the hearing 
request will be granted.

D. Access to SUNSI or SGI

    A petitioner seeking access to SUNSI or SGI in the possession of 
the NRC for the purposes of contention formulation shall make this 
request in accordance with the SUNSI-SGI Access Order issued with this 
notice. A petitioner who seeks access to SUNSI or SGI in the possession 
of the licensee through the process for consultation on claims of 
incompleteness shall do so in accordance with Section II.B.2 of the 
Additional Procedures Order issued with this notice. Petitioners are 
required to take advantage of these processes for seeking access to 
SUNSI or SGI, and their failure to do so will be taken into account by 
the NRC.

E. Participation by Interested States, Local Governments, and 
Federally-Recognized Indian Tribes

    A request for hearing submitted by a State, local government body, 
Federally-recognized Indian Tribe, or an agency thereof must comply 
with the provisions of 10 CFR 2.309(h)(1). The hearing request must 
meet the requirements for hearing requests set forth in this section, 
except that a State, local government body, Federally-recognized Indian 
Tribe, or an agency thereof does not need to address the standing 
requirements in 10 CFR 2.309(d) if the facility is located within its 
boundaries or jurisdiction. A State, local government body, Federally-
recognized Indian Tribe, or an agency thereof may also seek to 
participate in a hearing in accordance with 10 CFR 2.315(c).

F. Hearing Requests From the Licensee

    The licensee may file a request for hearing if it disputes an NRC 
staff determination that an ITAAC has not been successfully completed. 
If the licensee requests a hearing, it must specifically identify the 
ITAAC subject to this dispute and the specific issues that are being 
disputed.\10\
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    \10\ A hearing request from the licensee need not address the 
standards in 10 CFR 2.309(d) or (f). In particular, the licensee's 
interest in the proceeding is established by the fact that its 
authority to operate the facility depends on its compliance with the 
ITAAC. Also, the prima facie showing requirement does not apply to a 
licensee hearing request because the licensee would be asserting 
that an ITAAC has been successfully completed 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 an ITAAC has not been successfully completed; 
this NRC staff determination is analogous to a prima facie showing 
that the acceptance criteria have not been met.
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G. Deadlines for Hearing Requests and Answers to Hearing Requests

    Hearing requests must be filed no later than 60 days from February 
12, 2020. Hearing requests, intervention petitions, and motions for 
leave to file new or amended contentions or claims of incompleteness 
that are filed after this date must meet the requirements for such 
filings that are set forth in Section II.G of the Additional Procedures 
Order issued with this notice. As provided by 10 CFR 2.309(i), answers 
to a petitioner's hearing request must be filed within 25 days of 
service of the hearing request, and the petitioner is not permitted to 
reply to these answers. For hearing requests from the licensee, the NRC 
staff may file an answer within 10 days of service of the hearing 
request, and the licensee is not permitted to reply to the NRC staff's 
answer.
    The Commission will expeditiously rule on all hearing requests, and 
the milestone for this ruling is 30 days from the filing of answers. If 
the petitioner's hearing request is granted, the petitioner becomes a 
party to the contested proceeding, subject to any limitations in the 
order granting the hearing request. Concurrent with the granting of the 
hearing request, the Commission would designate the presiding officer 
for the hearing and issue an order specifying the hearing procedures 
that would apply to the proceeding. The party's participation would be 
governed by the applicable procedures set forth in the Commission order 
and may include the opportunity to present the party's legal

[[Page 8035]]

and technical views, introduce evidence, and propose questions to be 
asked of witnesses. The hearing procedures will be selected from those 
described in the ``Final Procedures for Conducting Hearings on 
Conformance with the Acceptance Criteria in Combined Licenses'' (Final 
ITAAC Hearing Procedures) (81 FR 43266; July 1, 2016), and may include 
any additional or modified case-specific procedures that the Commission 
designates.\11\
---------------------------------------------------------------------------

    \11\ In accordance with 10 CFR 2.309(g), participants to this 
proceeding may not address the selection of hearing procedures in 
their initial filings. The NRC provided the public with an 
opportunity to comment on generic hearing procedures during the 
comment period on the proposed generic procedures. See Final ITAAC 
Hearing Procedures, 81 FR 43266; Proposed Procedures for Conducting 
Hearings on Whether Acceptance Criteria in Combined Licenses Are 
Met, 79 FR 21958 (Apr. 18, 2014) (Proposed ITAAC Hearing 
Procedures). This prohibition, however, does not apply to a 
licensee's hearing request because such hearing requests are not 
subject to 10 CFR 2.309 and because the generic procedures did not 
address the procedures for hearings requested by the licensee.
---------------------------------------------------------------------------

H. Interim Operation

    If a hearing request is granted, AEA Sec.  189a.(1)(B)(iii) directs 
the Commission to determine whether to allow interim operation, which 
is operation of the facility for an interim period before completion of 
the adjudicatory hearing. Interim operation will be allowed if the NRC 
staff makes the 10 CFR 52.103(g) finding for all ITAAC and if the 
Commission determines, after considering the petitioner's 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. AEA Sec. Sec.  185b. and 
189a.(1)(B)(iii); 10 CFR 52.103(c). As provided by 10 CFR 52.103(c), 
the Commission will make this adequate protection determination acting 
as the presiding officer.
    The Commission is reserving its flexibility to make the interim 
operation determination at a time of its discretion. Because the 
purpose of the interim operation provision is to prevent an ITAAC 
hearing from unnecessarily delaying plant operation if the hearing 
extends beyond scheduled fuel load, the Commission intends to make an 
adequate protection determination for interim operation by scheduled 
fuel load if the hearing is not completed by that time.
    In making the adequate protection determination for interim 
operation, the Commission will follow the legislative intent underlying 
the interim operation provision. The pertinent legislative history 
indicates that Congress did not intend that the Commission would 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 does not present adequate protection concerns 
during the interim operation period or for which mitigation measures 
can be taken to preclude potential adequate protection issues during 
the period of interim operation.\12\
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    \12\ Additional background information regarding interim 
operation can be found in the Federal Register notice for the Final 
ITAAC Hearing Procedures (81 FR 43266).
---------------------------------------------------------------------------

    As stated previously, the adequate protection determination for 
interim operation is based on the parties' initial filings, i.e., the 
hearing request and answers thereto. Thus, the petitioner should 
include in its hearing request information regarding the time period 
and modes of operation during which the adequate protection concern 
arises. Likewise, the NRC staff and the licensee should include such 
information in their answers to the hearing request, and the licensee 
should also include any proposed mitigation measures to address the 
adequate protection concerns raised by the petitioner. The petitioners, 
the NRC staff, and the licensee are reminded 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 providing 
expert opinion.
    If the Commission grants a hearing request, it may order additional 
briefing as a matter of discretion to support a determination on 
whether there will be adequate protection during interim operation. 
Such a briefing order will be issued 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 will 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.
    More information on the interim operation process can be found in 
the Final ITAAC Hearing Procedures (81 FR 43266).

I. Limited Appearance Statements

    Any person who does not wish, or is not qualified, to become a 
party to this proceeding may request permission to make a limited 
appearance pursuant to 10 CFR 2.315(a). In the discretion of the 
presiding officer, a person making a limited appearance may make an 
oral or written statement of position on the issues at any session of 
the hearing or any prehearing conference within the limits and on the 
conditions fixed by the presiding officer. However, the presiding 
officer will not provide for oral limited appearance statements unless 
an oral hearing is held. In addition, a person making a limited 
appearance statement may not otherwise participate in the proceeding. 
Such limited appearance statements shall not be considered evidence in 
the proceeding.

III. Electronic Submissions (E-Filing)

    Except for an initial request for access to SUNSI or SGI made 
pursuant to the SUNSI-SGI Access Order, all documents filed in this 
proceeding, including a request for hearing, any motion or other 
document filed in the proceeding prior to the submission of a request 
for hearing, and documents filed by interested governmental entities 
participating under 10 CFR 2.315(c), must be filed in accordance with 
the NRC's E-Filing rule (72 FR 49139; August 28, 2007, as amended at 77 
FR 46562; August 3, 2012) as modified by the procedures in the orders 
issued with this notice.\13\ Participants to this proceeding must 
submit and serve all adjudicatory documents over the internet, or in 
some cases mail copies on electronic storage media by overnight mail. 
The user's guide for electronic adjudicatory submissions is available 
at https://www.nrc.gov/site-help/e-submittals/adjudicatory-eie-submission-user-guide.pdf. Participants may not

[[Page 8036]]

submit paper copies of their filings unless they seek an exemption in 
accordance with the procedures described later in this section.
---------------------------------------------------------------------------

    \13\ The initial request for access to SUNSI or SGI must be made 
in accordance with the procedures set forth in the SUNSI-SGI Access 
Order that accompanies this notice.
---------------------------------------------------------------------------

    To comply with the procedural requirements of E-Filing, at least 10 
days prior to the filing deadline, the participant should (1) obtain a 
digital identification (ID) certificate, which allows the participant 
(or its counsel or representative) to digitally sign documents and 
access the E-Submittal server for this proceeding and (2) contact the 
Office of the Secretary by email at [email protected], or by 
telephone at 301-415-1677, to advise the Secretary that the participant 
will be submitting a request for hearing (even in instances in which 
the participant, or its counsel or representative, already holds an 
NRC-issued digital ID certificate). Based upon this information, the 
Secretary will establish an electronic docket for this proceeding if 
the Secretary has not already established an electronic docket.
    Information about applying for a digital ID certificate is 
available on the NRC's public website at https://www.nrc.gov/site-help/e-submittals/getting-started.html. Once a participant has obtained a 
digital ID certificate and a docket has been created, the participant 
can then submit adjudicatory documents. Submissions should be in 
Portable Document Format (PDF). Additional guidance on PDF submissions 
is available on the NRC's public website at https://www.nrc.gov/site-help/e-submittals.html.
    A filing is considered complete at the time the documents are 
submitted through the NRC's E-Filing system. To be timely, an 
electronic filing must be submitted to the E-Filing system no later 
than 11:59 p.m. Eastern Time on the due date. Upon receipt of a 
transmission, the E-Filing system time-stamps the document and sends 
the submitter an email notice confirming receipt of the document. The 
E-Filing system also distributes an email notice that provides access 
to the document to the NRC's Office of the General Counsel and any 
others who have advised the Office of the Secretary that they wish to 
participate in the proceeding so that the filer need not serve the 
documents on those participants separately. Therefore, the licensee and 
other participants (or their counsel or representative) must apply for 
and receive a digital ID certificate before a hearing request is filed 
so that they can obtain access to the document via the E-Filing system.
    A person filing electronically using the NRC's adjudicatory E-
Filing system may seek assistance by contacting the NRC's Electronic 
Filing Help Desk through the ``Contact Us'' link located on the NRC's 
public website at https://www.nrc.gov/site-help/e-submittals.html, by 
email to [email protected], or by a toll-free call at 1-866-672-
7640. The NRC Electronic Filing Help Desk is available between 9 a.m. 
and 6 p.m., Eastern Time, Monday through Friday, excluding government 
holidays.
    Participants who believe that they have a good cause for not 
submitting documents electronically must file an exemption request, in 
accordance with 10 CFR 2.302(g), with their initial paper filing 
requesting authorization to continue to submit documents in paper 
format. Such filings must be submitted by overnight mail to the Office 
of the Secretary, U.S. Nuclear Regulatory Commission, Attention: 
Rulemaking and Adjudications Staff, Mail Stop OWFN 16-B33, One White 
Flint North, 11555 Rockville Pike, Rockville, Maryland 20852. 
Participants filing a document in this manner are responsible for 
serving the document on all other participants. Filing is considered 
complete by overnight mail upon depositing the document with the 
provider of the service. A presiding officer, having granted an 
exemption request from using E-Filing, may require a participant or 
party to use E-Filing if the presiding officer subsequently determines 
that the reason for granting the exemption from use of E-Filing no 
longer exists.
    Any person who files a motion pursuant to 10 CFR 2.323 (as modified 
by the Additional Procedures Order issued with this notice) must 
consult with counsel for the licensee and counsel for the NRC staff. 
Counsel for the licensee is M. Stanford Blanton, Balch & Bingham LLP, 
205-226-3417, [email protected]. Counsel for the NRC staff in this 
proceeding is Michael Spencer, 301-287-9115, [email protected].
    Documents submitted in this proceeding will appear in the NRC's 
electronic hearing docket, which is available to the public at https://adams.nrc.gov/ehd, unless excluded pursuant to an order of the 
Commission or the presiding officer. If you do not have an NRC-issued 
digital ID certificate as described above, click ``cancel'' when the 
link requests certificates and you will be automatically directed to 
the NRC's electronic hearing dockets where you will be able to access 
any publicly available documents in a particular hearing docket. 
Participants are requested not to include personal privacy information, 
such as social security numbers, home addresses, or home phone numbers 
in their filings, unless an NRC regulation or other law requires 
submission of such information. However, a hearing request will require 
that the petitioner include information on local residence in order to 
demonstrate a proximity assertion of interest in this proceeding. With 
respect to copyrighted works, except for limited excerpts that support 
the adjudicatory filings and would constitute a Fair Use application, 
participants are requested not to include copyrighted materials in 
their submission.

    Dated at Rockville, Maryland, this 4th day of February 2020.

    For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.

Attachment 1: Orders Associated With the Notice of Intended Operation

Order Imposing Additional Procedures for ITAAC Hearings Before a 
Commission Ruling on the Hearing Request

I. Background

    The Atomic Energy Act of 1954, as amended (AEA), grants the NRC 
discretion to establish appropriate procedures for conducting a hearing 
on whether a facility as constructed complies, or upon completion will 
comply, with the acceptance criteria in the combined license, provided 
that the NRC explains its reasoning for establishing those procedures. 
AEA Sec.  189a.(1)(B)(iv). As provided by 10 CFR 2.310(j), the 
Commission designates on a case-specific basis the procedures for 
proceedings on a Commission finding under 10 CFR 52.103(c) and (g), 
which includes the Commission determination on a hearing request under 
10 CFR 52.103(c).\14\ This order contains the procedures that govern 
requests for hearings on conformance with the prescribed acceptance 
criteria in the combined license, as well as other filings that may be 
submitted before a Commission ruling on the hearing request.\15\ The 
procedures in this order were approved by the Commission for use on a 
general basis in the ``Final Procedures for Conducting Hearings on 
Conformance with the Acceptance Criteria in Combined Licenses'' (Final 
ITAAC [inspections, tests, analyses, and

[[Page 8037]]

acceptance criteria] Hearing Procedures) (81 FR 43266; July 1, 2016).
---------------------------------------------------------------------------

    \14\ See Licenses, Certifications, and Approvals for Nuclear 
Power Plants, 72 FR 49352, 49414 (August 28, 2007) (final rule).
    \15\ This order contains only procedures governing the period 
prior to a ruling on the hearing request. If the Commission grants a 
hearing request or determines that a claim of incompleteness is 
valid, then the Commission will issue procedures governing the 
resolution of these issues concurrently with its decision on the 
hearing request.
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    The Commission developed the procedures in this order based on the 
NRC's rules of practice in 10 CFR part 2, primarily Subpart C, adopting 
or modifying them as necessary to conform to the expedited schedule and 
specialized nature of hearings on ITAAC. The Commission modeled these 
procedures on the existing rules because they 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 in this order if they are already familiar with 
the existing rules. To the extent that the Commission has substantively 
modified these rules, the basis for the Commission's decision is set 
forth in this order.\16\ And to the extent that the Commission has 
adopted the rules with little or no substantive change, the Commission 
incorporates by reference the basis for their promulgation in 10 CFR 
part 2.
---------------------------------------------------------------------------

    \16\ The procedures and schedule imposed by this order are based 
on a set of general procedures that the Commission approved after 
the consideration of public comments. See Final ITAAC Hearing 
Procedures, 81 FR 43266; Proposed Procedures for Conducting Hearings 
on Whether Acceptance Criteria in Combined Licenses Are Met, 79 FR 
21958 (Apr. 18, 2014). The notice in the Federal Register 
accompanying those general procedures provides a further explanation 
of their bases.
---------------------------------------------------------------------------

    Many of the modifications the Commission has made to the hearing 
procedures in existing regulations are to account for the requirement 
in the AEA that, to the maximum possible extent, decisions resolving 
issues raised by an ITAAC hearing request shall be rendered within 180 
days of the publication of the notice of intended operation or the 
anticipated date for initial loading of fuel, whichever is later. AEA 
Sec.  189a.(1)(B)(v). Therefore, the Commission has established a 
narrow time frame for hearings on ITAAC, which is reflected in reduced 
time limits for certain adjudicatory actions. The Commission has also 
made appropriate changes to the ``Order Imposing Procedures for Access 
to Sensitive Unclassified Non-Safeguards Information [SUNSI] and 
Safeguards Information [SGI] for Contention Preparation'' (SUNSI-SGI 
Access Order), which immediately follows this order. The participants 
are obligated to ensure that their representatives and witnesses are 
available during the hearing process to perform all of their hearing-
related tasks on time. The competing obligations of the participants' 
representatives or witnesses will not be considered good cause for any 
delays in the schedule.

II. Hearing Procedures

    The procedures set forth herein and in the SUNSI-SGI Access Order 
issued with this notice are exclusive--in other words, no procedures 
other than those stated in the orders issued with the notice of 
intended operation apply to this proceeding, unless modified by a later 
Commission order. Thus, if a provision of 10 CFR part 2 is not 
expressly referenced in this order, then it does not apply to this 
proceeding, unless modified by a later Commission order.

A. Briefing of Legal Issues in Filings

    In order to expedite the proceeding and ensure sound decision 
making by the presiding officer, participants must fully brief all 
relevant legal issues in their filings.

B. Hearing Requests and Answers to Hearing Requests

    1. Requirements for Hearing Requests
    a. Hearing requests must be filed within 60 days of the publication 
of the notice of intended operation. Section II.G of this order governs 
hearing requests, intervention petitions, and motions for leave to file 
new or amended contentions or claims of incompleteness that are filed 
after 60 days from the publication of the notice of intended operation.
    b. Hearing requests from petitioners must meet the requirements of 
10 CFR 2.309(f)(1)(i) through (v) and 10 CFR 2.309(f)(1)(vii). The 
requirements of 10 CFR 2.309(f)(1)(vi) do not apply to this proceeding.
    c. The requirements of Sections VI, VIII.B.5.g and VIII.C.5 of the 
AP1000 design certification rule apply to this proceeding.
    d. A hearing request from a petitioner must include a demonstration 
that the petitioner has standing in accordance with the requirements of 
10 CFR 2.309(d). Additionally, the provisions of 10 CFR 2.309(h) apply 
to this proceeding. However, discretionary intervention pursuant to 10 
CFR 2.309(e) does not apply to this proceeding because 10 CFR 2.309(a) 
requires a showing of standing and contention admissibility in an ITAAC 
hearing, and 10 CFR 2.309(a) does not provide a discretionary 
intervention exception for hearings under 10 CFR 52.103 as it provides 
for other proceedings.
    e. Any declarations of eyewitnesses or expert witnesses offered in 
support of contention admissibility need 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.
    f. Hearing requests from the licensee must specifically identify 
the ITAAC whose successful completion is being disputed by the NRC 
staff and identify the specific issues that are being disputed.
    2. Consultation on Claims of Incompleteness: To expedite the 
proceeding and prevent the unnecessary expenditure of resources that 
might occur from litigating claims of incompleteness that could have 
been resolved through negotiation, the Commission is requiring 
consultation between the petitioner and the licensee regarding 
information purportedly missing from the licensee's 10 CFR 52.99(c) 
ITAAC notifications. This consultation must occur prior to the filing 
of any claim of incompleteness and must be in accordance with the 
provisions set forth below.
    a. The petitioner must make a sincere effort to timely initiate and 
meaningfully engage in consultation with the licensee, and the licensee 
must make a sincere effort to listen to and respond to the petitioner. 
Both the petitioner and the licensee must make sincere efforts to 
resolve the petitioner's request and must complete consultations (and 
any delivery of documents) with due dispatch.
    b. The petitioner must initiate consultation with the licensee 
regarding any claims of incompleteness within 21 days of the notice of 
intended operation for all ITAAC notifications that were publicly 
available (or for which a redacted version was publicly available) when 
the notice of intended operation was published. If the ITAAC 
notification (or a redacted version thereof) becomes publicly available 
after the notice of intended operation is published, then the 
petitioner must initiate consultation with the licensee regarding any 
claims of incompleteness on such notifications within 7 days of the 
notification (or a redacted version thereof) becoming available to the 
public, except that consultation need not be commenced earlier than 21 
days after publication of the notice of intended operation.

[[Page 8038]]

    c. Within one day of the licensee discovering that consultation on 
a claim of incompleteness involves SUNSI or SGI, the licensee must 
inform the petitioner of this fact. Within one day of the licensee 
discovering that security-related SUNSI or SGI is involved, the 
licensee must also inform the NRC staff with a brief explanation of the 
situation.
    d. If consultation on a claim of incompleteness involves security-
related SUNSI or SGI, then the licensee shall not provide the security-
related SUNSI or SGI unless and until the NRC has determined that such 
access is appropriate. Also, if SGI is involved and the petitioner 
continues to seek access to it, then, in order to expedite the 
proceeding, the petitioner must complete and submit to the NRC the 
background check forms and fee in accordance with Sections D.(2)(a) 
through D.(2)(e) of the SUNSI-SGI Access Order issued with this notice. 
The background check forms and fee must be submitted within 5 days of 
notice from the licensee that SGI is involved. Petitioners are expected 
to have forms completed prior to this date to allow for expeditious 
submission of the required forms and fee. The petitioner should review 
all submitted materials for completeness and accuracy (including 
legibility) before submitting them to the NRC.
    e. In determining whether access to SUNSI or SGI is appropriate as 
part of the consultation process, the NRC staff shall employ the 
standards in Section F of the SUNSI-SGI Access Order with respect to 
likelihood of establishing standing, need for SUNSI, and need to know 
for SGI. For access to SGI, the NRC Office of Administration will also 
determine, based upon completion of the background check, whether the 
proposed recipient is trustworthy and reliable, as required by 10 CFR 
73.22(b) for access to SGI. Before making a final adverse 
trustworthiness and reliability determination, the NRC Office of 
Administration will employ the process set forth in Section K.(2) of 
the SUNSI-SGI Access Order. If the NRC Office of Administration makes a 
final adverse determination on trustworthiness and reliability, any 
request for review of this determination must be filed with the Chief 
Administrative Judge within 7 days of receipt of the adverse 
determination, any NRC staff response must be filed within 7 days of 
receipt of the request for review, and such requests for review shall 
be resolved in accordance with Section K.(4) of the SUNSI-SGI Access 
Order.\17\
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    \17\ If consultations are not successful because the NRC staff 
makes an adverse determination on the petitioner's likelihood of 
establishing standing, need for SUNSI, or need to know for SGI, then 
the issues of standing, need for SUNSI, and need to know for SGI (as 
applicable) will be resolved in a ruling on the claim of 
incompleteness if the petitioner decides to file a claim of 
incompleteness.
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    f. If access to SUNSI or SGI is granted, the presiding officer for 
any non-disclosure agreement or affidavit or protective order will be 
designated in accordance with Sections G and H of the SUNSI-SGI Access 
Order. The approved protective order templates announced in 
``Protective Order Templates for Hearings on Conformance With the 
Acceptance Criteria in Combined Licenses'' (84 FR 3515; Feb. 12, 2019), 
should serve as a basis for case-specific protective orders, as 
appropriate. Release and storage of SGI shall be in accordance with 
Section I of the SUNSI-SGI Access Order.
    g. Any contention based on additional information provided to the 
petitioner by the licensee through consultation on claims of 
incompleteness shall be due within 20 days of the petitioner's access 
to the additional information, unless more than 20 days remains between 
the petitioner's access to the additional information and the deadline 
for the hearing request, in which case the contention shall be due by 
the later hearing request deadline.
    h. If agreement is not reached before the deadline for filing the 
claim of incompleteness, then the petitioner must file the claim of 
incompleteness by the required deadline.
    i. If a claim of incompleteness is filed, the petitioner must 
include with its claim of incompleteness a certification by the 
attorney or representative of the petitioner that the petitioner (1) 
complied with the timeliness requirements for consultation and (2) made 
a sincere effort to meaningfully engage in consultation with the 
licensee on access to the purportedly missing information prior to 
filing the claim of incompleteness. This certification may include any 
additional discussion that the petitioner believes is necessary to 
explain the situation.
    j. A claim of incompleteness involving SUNSI or SGI must (1) 
specifically identify the extent to which the petitioner believes that 
any requested information might be SUNSI or SGI, and (2) include a 
showing of the need for the information (for access to SUNSI) or need 
to know (for access to SGI). The showing of need for SUNSI must satisfy 
the standard in Section D.(1)(iii) of the SUNSI-SGI Access Order, and 
the showing of need to know for SGI must satisfy the standard in 
Section D.(1)(iv) of the SUNSI-SGI Access Order. A claim of 
incompleteness involving SGI must also state that the required forms 
and fee for the background check have been submitted to the NRC in 
accordance with Sections D.(2)(a) through D.(2)(e) of the SUNSI-SGI 
Access Order.
    k. A licensee answer to a claim of incompleteness must include a 
certification by the licensee's attorney or representative that the 
licensee (1) complied with the timeliness requirements for consultation 
and (2) made a sincere effort to listen to and respond to the 
petitioner and to resolve the petitioner's request prior to the filing 
of the claim of incompleteness. This certification may include any 
additional discussion that the licensee believes is necessary to 
explain the situation. An answer from the licensee must also 
specifically identify the extent to which the licensee believes that 
any requested information might be SUNSI or SGI.
    l. In determining whether a claim of incompleteness is valid, the 
Commission will consider all of the information available to the 
petitioner, including any information provided by the licensee. The 
Commission will also consider whether the participants have discharged 
their consultation obligations in good faith.
    3. Effect of Hearing Requests on Interim Operation
    a. If the petitioner argues that the information raised in the 
hearing request will affect adequate protection during interim 
operation, then, in order for its views to be considered before the 
Commission makes the interim operation determination, the petitioner 
shall provide its views on this issue, including the time periods and 
modes of operation in which the adequate protection concern arises, at 
the same time it submits the hearing request.\18\
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    \18\ A claim of incompleteness 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.
---------------------------------------------------------------------------

    b. Because the Commission's interim operation determination is a 
technical finding, a petitioner'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 it 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 petitioner's position on 
adequate

[[Page 8039]]

protection during interim operation will depend on the level and 
specificity of support provided by the petitioner, including the 
qualifications and experience of each expert providing expert opinion.
    4. Answers
    a. Answers to a petitioner's hearing request shall be filed within 
25 days of service of the hearing request in accordance with 10 CFR 
2.309(i)(1). An answer to a licensee's hearing request may be filed by 
the NRC staff within 10 days of service of the hearing request.
    b. Any answers to the proffered contention from the NRC staff and 
the licensee shall include their views regarding the impact of the 
issues raised in the hearing request on adequate protection during 
interim operation, including the licensee's plans, if any, to propose 
mitigation measures to ensure adequate protection during interim 
operation. NRC staff filings addressing interim operation should 
address any terms and conditions that should be imposed to assure 
adequate protection during the interim period. Because the Commission's 
interim operation determination is a technical finding, the NRC staff's 
and the licensee'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 
they rely. 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 the NRC staff's or the licensee's position on adequate 
protection during interim operation will depend on the level and 
specificity of support provided, including the qualifications and 
experience of each expert providing expert opinion.
    c. As provided by 10 CFR 2.309(i)(2)-(3), replies to answers are 
not permitted. If the Commission grants the hearing request, it may 
determine that additional briefing is necessary to support an adequate 
protection determination on interim operation. If the Commission makes 
determinations that additional briefing is necessary on the adequate 
protection determination, then it intends to 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 intends to issue a briefing order 
allowing the NRC staff and the petitioner an opportunity to address 
adequate protection during interim operation in light of the mitigation 
measures proposed by the licensee in its answer.
    5. Timing for Decision on Hearing Requests
    a. Unless the Commission extends its time for review, the 
Commission will rule on a hearing request within 30 days of the filing 
of answers.
    b. A Commission interim operation determination need not be made in 
conjunction with a ruling on the hearing request.

C. General 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, or earlier, as prescribed by the presiding officer. 
Answers to motions shall be filed within 7 days after service of the 
motion, or earlier, as prescribed by the presiding officer. Except for 
the filing deadlines, motions and answers shall otherwise conform to 
the requirements of 10 CFR 2.323(a) through (d). The provisions of 10 
CFR 2.323(g) apply to this proceeding.

D. Motions for Extension of Time

    1. Except as otherwise provided, the presiding officer may, for 
good cause shown, extend the time fixed or the period of time 
prescribed for an act that is required or allowed to be done at or 
within a specified time. A showing of good cause must be based on an 
event occurring before the deadline in question.
    2. When determining whether the requesting participant has 
demonstrated good cause, the presiding officer shall take into account 
the factors in 10 CFR 2.334(b):
    a. Whether the requesting participant has exercised due diligence 
to adhere to the schedule;
    b. Whether the requested change is the result of unavoidable 
circumstances; and
    c. Whether the other participants have agreed to the change and the 
overall effect of the change on the schedule of the case.
    3. In furtherance of the statutory direction regarding the 
expeditious completion of the hearing, ``good cause'' is to be 
interpreted strictly, and a showing of ``unavoidable and extreme 
circumstances'' \19\ is required for any extension, no matter how 
minor. Because good cause will be interpreted strictly, meritorious 
motions will likely be based on events outside the participant's 
control.
---------------------------------------------------------------------------

    \19\ This standard is taken from the Policy on Conduct of 
Adjudicatory Proceedings, CLI-98-12, 48 NRC 18, 21 (1998).
---------------------------------------------------------------------------

    4. Motions for extension of time shall be filed as soon as possible 
but no later than 3 days before the deadline, with one limited 
exception. If the participant is unable to file an extension request by 
3 days before the deadline, then the participant must (1) file its 
request as soon as possible thereafter, (2) demonstrate that 
unavoidable and extreme circumstances prevented the participant from 
filing its extension request by 3 days before the deadline, and (3) 
demonstrate that the participant filed its extension request as soon as 
possible thereafter.\20\
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    \20\ 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. See Amendments to 
Adjudicatory Process Rules and Related Requirements, 77 FR 46562, 
46571 (August 3, 2012) (final rule).
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E. Requests for Reconsideration and Motions for Clarification

    Motions for reconsideration are not allowed for decisions on the 
hearing request or any presiding officer decisions prior to the 
decision on the hearing request. Instead, reconsideration will only be 
allowed for a presiding officer's initial decision after hearing and 
Commission decisions on appeal of a presiding officer's initial 
decision. Reconsideration is allowed in these narrow instances because 
these are the most important decisions in the proceeding and motions 
for reconsideration of these decisions do not prevent them from taking 
effect. Reconsideration is not permitted for other decisions because 
(1) reconsideration is unlikely to be necessary for other decisions, 
which are interlocutory in nature, (2) the resources necessary to 
prepare, review, and rule on requests for reconsideration would take 
time away from other hearing-related tasks, (3) participants who 
disagree with an order of the presiding officer may seek redress 
through the process for appeals and petitions for review, and (4) the 
appellate process will not cause undue delay given the expedited nature 
of the proceeding. Motions for clarification are allowed for these 
other decisions, but to prevent them from becoming de facto motions for 
reconsideration, motions for clarification will be limited to

[[Page 8040]]

ambiguities in a presiding officer order. In addition, a motion for 
clarification must explain the basis for the perceived ambiguity and 
may offer possible interpretations of the purportedly ambiguous 
language.

F. Presiding Officer Notifications

    1. Notification of Relevant New Developments in the Proceeding
    a. Given the potential for circumstances to change over the course 
of this unique proceeding, we remind the participants of their 
continuing obligation to notify the other participants, the presiding 
officer, and the Commission of relevant new developments in the 
proceeding.\21\
---------------------------------------------------------------------------

    \21\ USEC Inc. (American Centrifuge Plant), CLI-06-10, 63 NRC 
451, 470 (2006).
---------------------------------------------------------------------------

    2. Additional Notification Procedures for Pending Contentions
    a. For several reasons, it is possible for the factual predicate of 
a proposed contention to change before a decision on its admissibility. 
First, NRC regulations require for uncompleted ITAAC that hearing 
requests be submitted on the predictive question of whether one or more 
of the acceptance criteria in the combined license will not be met.\22\ 
When the ITAAC is later completed, this may affect the basis for the 
proposed contention. Second, a licensee might choose to re-perform an 
inspection, test, or analysis for ITAAC maintenance or to dispute a 
proposed contention.\23\ Third, events subsequent to the performance of 
an ITAAC might be relevant to the continued validity of the earlier 
ITAAC performance. To account for these possibilities, and to ensure 
that the presiding officer and the participants are timely notified of 
a change in circumstances, the NRC establishes the following additional 
procedures for proposed contentions that might be affected by such an 
event.
---------------------------------------------------------------------------

    \22\ See 10 CFR 2.309(f)(1)(vii).
    \23\ The AEA provisions on combined licenses and ITAAC were 
added by the Energy Policy Act of 1992 (EPAct), Public Law Number 
102-486. 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 
(Feb. 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.
---------------------------------------------------------------------------

    b. To ensure that the presiding officer and the other participants 
stay fully informed of the status of challenged ITAAC as a proposed 
contention is being considered, any answers to the proposed contention 
from the NRC staff and the licensee must discuss any changes in the 
status of challenged ITAAC.
    c. After answers are filed, the participants must notify the 
presiding officer and the other participants 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 presiding officer and the other 
participants of information related to re-performance of an ITAAC that 
might bear on the proposed contention. In addition, after answers are 
filed, the licensee must notify the presiding officer and the other 
participants of the submission of any ITAAC closure notification or 
ITAAC post-closure notification for a challenged ITAAC. This notice 
must be filed within one day of the submission of the ITAAC closure 
notification or ITAAC post-closure notification to the NRC.

G. Hearing Requests, Intervention Petitions, and Motions for Leave To 
File New or Amended Contentions or Claims of Incompleteness Filed After 
the Original Deadline

    1. Presiding Officer: Hearing requests, intervention petitions, and 
motions for leave to file new or amended contentions or claims of 
incompleteness after the original deadline must be filed with the 
Commission.
    a. The Commission will rule upon 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 and schedule for the newly admitted contentions and 
will determine whether there will be adequate protection during 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 will designate separate procedures 
for resolving the claim.
    b. For motions for leave to file amended contentions, the 
Commission may rule on the amended contentions or may delegate rulings 
on such contentions to a licensing board or a single legal judge 
(assisted as appropriate by technical advisors). For amended 
contentions, a Commission ruling may not be necessary to lend 
predictability to the hearing process because the Commission will have 
provided guidance on the admissibility of the relevant issues when it 
ruled on the original contention. If a hearing request is granted, 
additional procedures governing presiding officer rulings on amended 
contentions will be included in a Commission order issued concurrently 
with its decision on the hearing request.
    2. Good Cause Required, as Defined in 10 CFR 2.309(c)
    a. Hearing requests, intervention petitions, and motions for leave 
to file new or amended contentions or claims of incompleteness that are 
filed by petitioners after the original deadline will not be 
entertained absent a determination by the Commission or the presiding 
officer that the petitioner has demonstrated good cause by showing 
that:
    (i) The information upon which the filing is based was not 
previously available;
    (ii) The information upon which the filing is based is materially 
different from information previously available; and
    (iii) The filing has been submitted in a timely fashion based on 
the availability of the subsequent information. To be deemed timely, 
hearing requests, intervention petitions, and motions for leave to file 
new or amended contentions filed after the original deadline must be 
filed within 20 days of the availability of the information upon which 
the filing is based. To be deemed timely, motions for leave to file new 
or amended claims of incompleteness under 10 CFR 2.309(f)(1)(vii) must 
be filed within 20 days of the date that the challenged 10 CFR 52.99(c) 
notification (or a redacted version thereof) becomes available to the 
public.
    3. Additional Requirements
    a. Hearing requests, intervention petitions, and motions for leave 
to file new or amended contentions or claims of incompleteness that are 
filed by petitioners after the original deadline must meet the 
requirements set forth in Sections II.B.1.b through II.B.1.e of this 
order, except that a showing of standing is not required for 
participants who have already addressed the standing criteria.
    b. Claims of incompleteness filed after the original deadline are 
subject to the requirements of Section II.B.2 of this order except that 
Section II.B.2.b is clarified to provide that the petitioner must 
initiate consultation with the licensee regarding any claims of 
incompleteness on such notifications within 7 days of the notification 
(or a redacted version thereof) becoming available to the public.
    c. Licensee hearing requests after the original deadline must be 
filed within 20 days of formal correspondence from the NRC staff 
communicating its

[[Page 8041]]

position that a particular ITAAC has not been successfully completed. 
Licensee hearing requests after the original deadline must also satisfy 
Section II.B.1.f of this order.
    d. If a petitioner submitting a hearing request, intervention 
petition, or motion for leave to file new or amended contentions or 
claims of incompleteness after the deadline believes that some aspect 
of operation must be stayed until action is taken in the hearing 
process, then that petitioner has the burden of submitting its stay 
request simultaneously with the hearing request, intervention petition, 
or motion for leave to file new or amended contentions or claims of 
incompleteness. If the petitioner does not include a stay request with 
its pleading, the petitioner will have constructively waived its right 
to request a stay at a later time.
    4. Effect of Hearing Requests, Intervention Petitions, and New or 
Amended Contentions Filed After the Original Deadline on Interim 
Operation
    a. The provisions in Sections II.B.3 of this order also apply to 
hearing requests, intervention petitions, and motions for leave to file 
new or amended contentions that are filed by petitioners after the 
original deadline.
    5. Answers
    a. The provisions in Sections II.B.4.a and II.B.4.b of this order 
also apply to answers to hearing requests, intervention petitions, and 
motions for leave to file new or amended contentions or claims of 
incompleteness filed after the original deadline, except that answers 
to filings from petitioners are due within 14 days of service of the 
hearing request, intervention petition, or motion for leave to file a 
new or amended contention or claim of incompleteness filed after the 
original deadline.
    b. Replies to answers are not permitted. If the Commission grants 
the hearing request, intervention petition, or motion for leave to file 
new or amended contentions filed after the original deadline, the 
Commission may determine that additional briefing is necessary to 
support an adequate protection determination on interim operation in 
accordance with Section II.B.4.c of this order.
    6. Timing for Decision on Hearing Requests, Intervention Petitions, 
and Motions for Leave to File New or Amended Contentions or Claims of 
Incompleteness Filed After the Original Deadline
    a. Unless the Commission extends the time for its review, the 
Commission will rule on a hearing request, intervention petition, or 
motion for leave to file a new or amended contention or claim of 
incompleteness filed after the original deadline within 30 days of the 
filing of answers. If a decision on the admissibility of an amended 
contention is delegated to a licensing board or a single legal judge 
(assisted as appropriate by technical advisors), the Commission expects 
the presiding officer to rule on the amended contention within 30 days 
of the filing of answers. Further procedures governing presiding 
officer rulings on amended contentions would be included in a 
Commission order issued concurrently with its decision on the hearing 
request.
    b. A Commission interim operation determination need not be made in 
conjunction with a ruling on a hearing request, intervention petition, 
or new or amended contention after the deadline.

H. Reopening the Record

    1. The NRC's existing rule in 10 CFR 2.326 will apply to any effort 
to reopen the record.

I. Commission Review of Presiding Officer Decisions

    1. Because the Commission, itself, will be ruling on the hearing 
request, the only possible decision before this ruling that would not 
be made by the Commission would be on requests for review of NRC staff 
determinations on access to SUNSI or SGI. Any appeals of such decisions 
will be governed by Section II.I.2 of this order; 10 CFR 2.311 does not 
apply to this proceeding.
    2. Interlocutory Appeals
    a. Participants or petitioners may appeal to the Commission a 
presiding officer ruling with respect to a request for access to SUNSI 
(including, but not limited to, proprietary, confidential commercial, 
and security-related information) or SGI. Because of the expedited 
nature of the proceeding, such an appeal shall be filed within 7 days 
after service of the order. The appeal shall be initiated by the filing 
of a notice of appeal and accompanying supporting brief. Any 
participant or petitioner may file a brief in opposition within 7 days 
after service of the appeal. The supporting brief and any answer shall 
conform to the requirements of 10 CFR 2.341(c)(3). A presiding officer 
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 in whole or in part. A presiding officer order granting a 
request for access to SUNSI or SGI may only be appealed 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 person whose interest 
independent of the proceeding would be harmed by the release of the 
information.
    b. The Commission does not expect appeals seeking to overturn a 
denial of access to SUNSI or SGI to delay any aspect of the proceeding 
unless the requestor can show irreparable harm.
    3. Certified Questions/Referred Rulings
    a. The Commission recognizes that there may be unusual cases that 
merit a certified question or referred ruling from the presiding 
officer, 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 this proceeding. However, the 
proceeding is not stayed by the presiding officer's referral of a 
ruling or certification of a question. Where practicable, the presiding 
officer 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.

J. Stays of Decisions or Actions

    1. 10 CFR 2.342 and 2.1213 are applicable to this proceeding with 
the following exceptions:
    a. The deadline in Sec.  2.342 for filing either a stay application 
or an answer to a stay application is shortened to 7 days.
    b. The deadline in Sec.  2.1213(c) to file an answer supporting or 
opposing a stay application is shortened to 7 days.
    c. A request to stay the effectiveness of the Commission's decision 
on interim operation will not be entertained. The Commission's decision 
on interim operation becomes final agency action once the NRC staff 
makes the finding under 10 CFR 52.103(g) that the acceptance criteria 
are met and issues an order allowing interim operation.

K. Additional Provisions

    1. The following provisions in 10 CFR part 2 apply to this 
proceeding as written and in accordance with Commission case law, 
except as otherwise noted:
    a. 10 CFR 2.4 (Definitions): with the clarification that this 
proceeding is considered a ``contested proceeding.''
    b. 10 CFR 2.8 (Information collection requirements: OMB approval).
    c. 10 CFR 2.111 (Prohibition on sex discrimination).
    d. 10 CFR 2.302 (Filing of documents): The initial request for 
access to SUNSI or SGI under the

[[Page 8042]]

SUNSI-SGI Access Order will be made in accordance with the provisions 
of the SUNSI-SGI Access Order. For all other filings, 10 CFR 2.302 
applies with the exception that subsections (b)(1) and (d)(2), which 
relate to first-class mail delivery, do not apply. When the presiding 
officer has approved a method other than electronic filing through the 
E-Filing system, documents filed in this proceeding must be transmitted 
either by fax, email, or overnight mail to ensure expedited delivery. 
Use of overnight mail will only be allowed if fax or email 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 
segmented into smaller files, the filer must segment the document and 
file the segments separately.
    e. 10 CFR 2.303 (Docket).
    f. 10 CFR 2.304 (Formal requirements for documents; signatures; 
acceptance for filing).
    g. 10 CFR 2.305 (Service of documents, methods, proof): The initial 
request for access to SUNSI or SGI under the SUNSI-SGI Access Order 
will be made in accordance with the provisions of the SUNSI-SGI Access 
Order. For all other filings, 10 CFR 2.305 applies with the exception 
that when the presiding officer has approved a method other than 
electronic service through the E-Filing system, service must be made 
either by fax, email, or overnight mail in order to ensure expedited 
delivery. Use of overnight mail will only be allowed if fax or email is 
impractical.
    h. 10 CFR 2.306 (Computation of time): with the exception that 
subsections (b)(1) through (b)(4), which allow additional time for 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.
    i. 10 CFR 2.313 (Designation of presiding officer, 
disqualification, unavailability, and substitution): With the exception 
that subsection (a) does not apply because this order governs the 
selection of the presiding officer.
    j. 10 CFR 2.314 (Appearance and practice before the Commission in 
adjudicatory proceedings): With the exception that, to expedite the 
proceeding, the time to appeal a disciplinary sanction under subsection 
(c)(3) is modified to 10 days after the issuance of the order imposing 
sanctions.
    k. 10 CFR 2.315 (Participation by a person not a party).
    l. 10 CFR 2.316 (Consolidation of parties).
    m. 10 CFR 2.317 (Separate hearings; consolidation of proceedings).
    n. 10 CFR 2.318 (Commencement and termination of jurisdiction of 
presiding officer).
    o. 10 CFR 2.319 (Power of the presiding officer): Subsections (a), 
(c), (d), (e), (g), (h), (i), (j), (k), (l), (m), (p), (q), (r), and 
(s) apply in their entirety. Subsection (b) applies with the 
clarification that this provision will not be used for purposes of 
discovery since there is no discovery before a contention is admitted. 
Subsection (f) does not apply because depositions are not allowed in 
this proceeding. Subsections (n) and (o) do not apply because they 
concern matters arising after a contention is admitted.
    p. 10 CFR 2.320 (Default).
    q. 10 CFR 2.321 (Atomic Safety and Licensing Boards).
    r. 10 CFR 2.324 (Order of procedure).
    s. 10 CFR 2.329 (Prehearing conference).
    t. 10 CFR 2.330 (Stipulations).
    u. 10 CFR 2.331 (Oral argument before the presiding officer).
    v. 10 CFR 2.335 (Consideration of Commission rules in 
adjudications).
    w. 10 CFR 2.343 (Oral argument).
    x. 10 CFR 2.346 (Authority of the Secretary).
    y. 10 CFR 2.347 (Ex parte communications).
    z. 10 CFR 2.348 (Separation of functions).
    aa. 10 CFR 2.390 (Public inspections, exemptions, requests for 
withholding).

Order Imposing Procedures for Access to Sensitive Unclassified Non-
Safeguards Information and Safeguards Information for Contention 
Preparation

    A. This order contains instructions regarding how potential parties 
to this proceeding may request access to documents containing sensitive 
unclassified information (including sensitive unclassified non-
safeguards information (SUNSI) and Safeguards Information (SGI)). 
Requirements for access to SGI are primarily set forth in 10 CFR parts 
2 and 73. Nothing in this order is intended to conflict with the SGI 
regulations unless this order expressly provides otherwise.
    B. Within 10 days after publication of this notice of intended 
operation, any potential party who believes access to SUNSI or SGI is 
necessary to formulate contentions may request access to SUNSI or SGI. 
A ``potential party'' is any person who intends to participate as a 
party by demonstrating standing and filing an admissible contention in 
accordance with the instructions in the notice of intended operation.
    C. Requests for access to SUNSI or SGI submitted later than 10 days 
after the publication of this notice will not be considered absent a 
showing of good cause for the late filing, addressing why the request 
could not have been filed earlier. To show good cause, the potential 
party must demonstrate that its 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.
    D. (1) The requestor shall request permission to access SUNSI, SGI, 
or both by email submitted to the Office of the Secretary, U.S. Nuclear 
Regulatory Commission, Attention: Rulemakings and Adjudications Staff, 
[email protected]; with copies being sent to the Deputy General 
Counsel for Hearings and Administration, Office of the General Counsel, 
[email protected]; and Michael Spencer, Counsel for 
the NRC staff, [email protected]. If it is impractical for the 
requestor to email its request, then the requestor must submit the 
letter by overnight mail on the date the request is due. The addresses 
for overnight mail are as follows: (a) Office of the Secretary, U.S. 
Nuclear Regulatory Commission, Attention: Rulemakings and Adjudications 
Staff, Mail Stop OWFN 16-B33, 11555 Rockville Pike, Rockville, Maryland 
20852; (b) Deputy General Counsel for Hearings and Administration, 
Office of the General Counsel, U.S. Nuclear Regulatory Commission, Mail 
Stop OWFN 14-A44, 11555 Rockville Pike, Rockville, Maryland 20852; and 
(c) Michael Spencer, Counsel for the NRC staff, U.S. Nuclear Regulatory 
Commission, Mail Stop OWFN 14-A44, 11555 Rockville Pike, Rockville, 
Maryland 20852.\24\ The request must include the following information:
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    \24\ While a request for hearing and other filings in this 
proceeding must be made through the E-Filing system in accordance 
with the provisions set forth in this notice, the initial request to 
access SUNSI and/or SGI under these procedures should be submitted 
as described in this paragraph.
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    (i) A citation to this Federal Register notice and a statement that 
the information is being requested with respect to a hearing on 
conformance with the acceptance criteria in the combined license for 
Vogtle Electric Generating Plant Unit 3;
    (ii) The name and address of the potential party and a description 
of the potential party's particularized interest that could be harmed 
by a finding by the NRC that the acceptance criteria in the combined 
license are met;

[[Page 8043]]

    (iii) If the request is for SUNSI, the identity of the individual 
or entity requesting access to SUNSI and the requestor's basis for the 
need for the information in order to meaningfully participate in this 
adjudicatory proceeding. In particular, the request must explain why 
publicly-available versions of the information requested would not be 
sufficient to provide the basis and specificity for a proffered 
contention;
    (iv) If the request is for SGI, the identity of each individual who 
would have access to SGI if the request is granted, including the 
identity of any expert, consultant, or assistant who will aid the 
requestor in evaluating the SGI. The request should state that the 
background check forms and fees required by Section D.(2) of this order 
have been submitted for these individuals. In addition, the request 
must contain a statement that explains each individual's ``need to 
know'' the SGI, as required by 10 CFR 73.2 and 10 CFR 73.22(b)(1). 
Consistent with the definition of ``need to know'' as stated in 10 CFR 
73.2, the statement must explain:
    (A) Specifically why the requestor believes that the information is 
necessary to enable the requestor to proffer and/or adjudicate a 
specific contention in this proceeding; \25\ and
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    \25\ Broad SGI requests under these procedures are unlikely to 
meet the standard for need to know; furthermore, staff redaction of 
information from requested documents before their release may be 
appropriate to comport with this requirement. These procedures do 
not authorize unrestricted disclosure or less scrutiny of a 
requestor's need to know than ordinarily would be applied in 
connection with an already-admitted contention or non-adjudicatory 
access to SGI.
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    (B) The technical competence (demonstrable knowledge, skill, 
training or education) of the requestor to effectively utilize the 
requested SGI to provide the basis and specificity for a proffered 
contention. The technical competence of a potential party or its 
counsel may be shown by reliance on a qualified expert, consultant, or 
assistant who satisfies these criteria.
    (2) If the request is for access to SGI, certain forms and fees 
shall be submitted as specified by Sections D.(2)(a) through D.(2)(e) 
of this order to support an NRC determination on trustworthiness and 
reliability. To initiate the background check, Form FD-258 (fingerprint 
card) and Form SF-85, ``Questionnaire for Non-Sensitive Positions,'' 
must be completed and submitted. The requestor should contact the NRC's 
Office of Administration at (301) 415-3710 to request a package 
containing the Form FD-258 and to obtain access to Form SF-85. To 
obtain access to Form SF-85, each individual for whom a background 
check is being requested will be asked to provide the individual's full 
legal name, social security number, date and place of birth, telephone 
number, and email address.\26\ Instructions for completing these two 
forms will be provided directly to the individual for whom the 
background check is being requested.
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    \26\ After providing this information, the individual usually 
should be able to obtain access to the online Form SF-85 within two 
business days.
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    (a) A completed Form SF-85 shall be submitted for each individual 
who would have access to SGI and who did not submit this form as part 
of the pre-clearance process announced at 84 FR 54928. The completed 
Form SF-85 will be used by the Office of Administration to conduct the 
background check required for access to SGI, as required by 10 CFR part 
2, subpart C, and 10 CFR 73.22(b)(2), to determine the requestor's 
trustworthiness and reliability. For security reasons, Form SF-85 can 
only be submitted electronically through a secure website that is owned 
and operated by the investigative agency performing the background 
check.
    (b) A completed Form FD-258 (fingerprint card), signed in original 
ink, shall be submitted in accordance with Section D.(2)(e) for each 
individual who would have access to SGI and who did not submit this 
form as part of the pre-clearance process announced at 84 FR 54928. The 
fingerprint card will be used to satisfy the requirements of 10 CFR 
part 2, 10 CFR 73.22(b)(1), and Section 149 of the Atomic Energy Act of 
1954, as amended, which mandates that all persons with access to SGI 
must be fingerprinted for a Federal Bureau of Investigation 
identification and criminal history records check.
    (c) A check or money order payable in the amount of $340.00 to the 
U.S. Nuclear Regulatory Commission shall be submitted in accordance 
with Section D.(2)(e) for each individual for whom the request for 
access is being submitted and who did not pay this fee as part of the 
pre-clearance process announced at 84 FR 54928.
    (d) If the requestor or any individual who will have access to SGI 
believes they belong to one or more of the categories of individuals 
that are exempt from the criminal history records check and background 
check requirements in 10 CFR 73.59, the requestor should also provide a 
statement identifying which exemption the requestor is invoking and 
explaining the requestor's basis for believing that the exemption 
applies. This statement shall be submitted in accordance with Section 
D.(2)(e). While processing the request, the Office of Administration 
will make a final determination on whether the claimed exemption 
applies. Alternatively, the requestor may contact the Office of 
Administration for an evaluation of their exemption status prior to 
submitting their request. Persons who are exempt from the background 
check are not required to complete the SF-85 or Form FD-258; however, 
all other requirements for access to SGI, including the need to know, 
still apply.
    (e) Copies of documents and materials required by Sections 
D.(2)(b), (c), and (d) of this order must be sent to the following 
address by overnight mail: U.S. Nuclear Regulatory Commission, Office 
of Administration, Personnel Security Branch, ATTN: SGI Background 
Check Materials for ITAAC Hearing, Mail Stop TWFN 07-D04M, 11555 
Rockville Pike, Rockville, MD 20852.
    These documents and materials should not be included with the 
request letter to the Office of the Secretary.
    E. To avoid delays in processing requests for access to SGI, the 
requestor should review all submitted materials for completeness and 
accuracy (including legibility) before submitting them to the NRC. The 
NRC will return incomplete packages to the sender without processing.
    F. Based on an evaluation of the information submitted under 
Section D.(1), the NRC staff will determine within 10 days of receipt 
of the request whether:
    (1) There is a reasonable basis to believe the requestor is likely 
to establish standing to participate in this NRC proceeding; and
    (2) The requestor has established a legitimate need for access to 
SUNSI or established a need to know the SGI requested.
    G. For requests for access to SUNSI, if the NRC staff determines 
that the requestor satisfies both Sections F.(1) and F.(2), the NRC 
staff will notify the requestor in writing that access to SUNSI has 
been granted. The written notification will contain instructions on how 
the requestor may obtain copies of the requested documents and any 
other conditions that may apply to access to those documents. These 
conditions may include, but are not limited to, the signing of a non-
disclosure agreement or affidavit, or protective order \27\ setting

[[Page 8044]]

forth terms and conditions to prevent the unauthorized or inadvertent 
disclosure of SUNSI by each individual who will be granted access to 
SUNSI. The approved protective order templates announced at 84 FR 3515 
should serve as a basis for case-specific protective orders, as 
appropriate. In addition, the NRC staff must also inform any person 
whose interest independent of the proceeding would be harmed by the 
release of the information.
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    \27\ Any motion for protective order or draft non-disclosure 
affidavit or agreement for SUNSI must be filed with the single legal 
judge designated to rule on the request (or the Chief Administrative 
Judge if a single legal judge has not yet been designated) within 10 
days after a positive access determination is made. If such motion 
is filed with the Chief Administrative Judge, the Chief 
Administrative Judge will designate a single legal judge to rule on 
the motion.
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    H. For requests for access to SGI, if the NRC staff determines that 
the requestor has satisfied both Sections F.(1) and F.(2), the Office 
of Administration will then determine, based upon completion of the 
background check, whether the proposed recipient is trustworthy and 
reliable, as required for access to SGI by 10 CFR 73.22(b). If the 
Office of Administration determines that the individual or individuals 
are trustworthy and reliable, the NRC will promptly notify the 
requestor in writing. The notification will provide the names of 
approved individuals as well as the conditions under which the SGI will 
be provided. Those conditions may include, but are not limited to, the 
signing of a non-disclosure agreement or affidavit, or protective order 
\28\ by each individual who will be granted access to SGI. The approved 
protective order templates announced at 84 FR 3515 should serve as a 
basis for case-specific protective orders, as appropriate.
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    \28\ Any motion for protective order or draft non-disclosure 
affidavit or agreement for SGI must be filed with the single legal 
judge designated to rule on the request (or the Chief Administrative 
Judge if a single legal judge has not yet been designated) within 10 
days after a positive access determination is made. If such a motion 
is filed with the Chief Administrative Judge, the Chief 
Administrative Judge will designate a single legal judge to rule on 
the motion.
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    I. Release and Storage of SGI. Prior to providing SGI to the 
requestor, the NRC staff will conduct (as necessary) an inspection to 
confirm that the recipient's information protection system is 
sufficient to satisfy the requirements of 10 CFR 73.22. Alternatively, 
recipients may opt to view SGI at an approved SGI storage location 
rather than establish their own SGI protection program to meet SGI 
protection requirements.
    J. Filing of Contentions. Any contentions in this proceeding that 
are based upon the information received as a result of a request for 
SUNSI or SGI must be filed by the requestor no later than 20 days after 
the requestor receives access to that information. However, if more 
than 20 days remain between the date the petitioner receives access to 
the information and the deadline for filing the hearing request (as 
established in the notice of intended operation), the petitioner may 
file its SUNSI or SGI contentions by that later deadline.
    K. Review of Denials of Access.
    (1) If the request for access to SUNSI or SGI is denied by the NRC 
staff either after a determination on standing and requisite need, or 
after a determination on trustworthiness and reliability, the NRC staff 
shall immediately notify the requestor in writing, briefly stating the 
reason or reasons for the denial.
    (2) Before the Office of Administration makes a final adverse 
determination regarding the proposed recipient(s) trustworthiness and 
reliability for access to SGI, the Office of Administration, in 
accordance with 10 CFR 2.336(f)(1)(iii), must provide the proposed 
recipient(s) any records that were considered in the trustworthiness 
and reliability determination, including those required to be provided 
under 10 CFR 73.57(e)(1), so that the proposed recipient(s) have an 
opportunity to correct or explain the record. A recipient's challenge 
under 10 CFR 2.336(f)(1)(iii)(B) to the completeness and accuracy of 
the records relied on by the Office of Administration in making its 
initial adverse trustworthiness and reliability determination must be 
submitted within 7 days of the recipient's receipt of the records from 
the Office of Administration.\29\
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    \29\ The time period for a challenge under 10 CFR 
2.336(f)(1)(iii)(B) has been reduced from 10 days to 7 days in order 
to expedite the proceeding and to be consistent with the 7-day 
period given in this order for interlocutory appeals of presiding 
officer determinations on access to SUNSI or SGI.
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    (3) The requestor may challenge the NRC staff's adverse 
determination with respect to access to SUNSI by filing a request for 
review within 5 days of receipt of that determination with the Chief 
Administrative Judge, who will designate a single legal judge (assisted 
as appropriate by technical advisors) to rule on the challenge.\30\ The 
NRC staff may respond to a request for review within 5 days of service 
of the request.
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    \30\ Requestors should note that appeals of NRC staff 
determinations and other filings must be made through the E-Filing 
system in accordance with the provisions set forth in this notice 
even though the initial SUNSI/SGI request submitted to the NRC staff 
under these procedures was made by other means.
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    (4) The requestor may challenge the NRC staff's adverse 
determination on need to know or likelihood of establishing standing 
with respect to access to SGI by filing a request for review with the 
Chief Administrative Judge within 5 days of receipt of the adverse 
determination, and the NRC staff may file a response within 5 days of 
receipt of the request for review. The requestor may challenge the NRC 
Office of Administration's adverse determination on trustworthiness and 
reliability for access to SGI by filing a request for review with the 
Chief Administrative Judge within 7 days of receipt of the adverse 
determination, and the NRC staff may file a response within 7 days of 
receipt of the request for review.\31\ The Chief Administrative Judge 
will assign a single legal judge (assisted as appropriate by technical 
advisors) to rule on the challenge. If the challenge relates to an 
adverse determination by the NRC Office of Administration on 
trustworthiness and reliability for access to SGI, then consistent with 
10 CFR 2.336(f)(1)(iv), neither the single legal judge chosen to rule 
on the challenge nor any technical advisors supporting a ruling on the 
challenge can serve as the presiding officer for the ITAAC proceeding.
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    \31\ The time periods for filing requests for review (and 
responses thereto) under 10 CFR 2.336(f)(1)(iv) have been reduced to 
7 days in order to expedite the proceeding and to be consistent with 
the 7-day period given in this order for interlocutory appeals (and 
answers thereto) of presiding officer determinations on access to 
SUNSI or SGI. Other than the time periods for filing, requests for 
review of final adverse determinations by the Office of 
Administration on trustworthiness and reliability (and NRC staff 
responses to requests for review) must comply with 10 CFR 
2.336(f)(1)(iv).
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    (5) Appeals of presiding officer decisions on access to SUNSI or 
SGI must be made pursuant to the provisions of the ``Order Imposing 
Additional Procedures for ITAAC Hearings Before a Commission Ruling on 
the Hearing Request'' (Additional Procedures Order) that was issued 
with this notice.
    L. Review of Grants of Access. A person other than the requestor 
may file a request for review challenging an NRC staff determination 
granting access to SUNSI whose release would harm that person's 
interest independent of the proceeding.\32\ Such a request for review 
must be filed with the Chief Administrative Judge within 5 days of the 
notification by the NRC staff of its grant of access, and the NRC staff 
may respond to a request for review within 5 days of receiving it. The 
Chief Administrative Judge will designate a single legal judge 
(assisted as appropriate by technical advisors) to rule on the 
challenge. Appeals of presiding officer decisions on access to SUNSI 
must be made pursuant to the

[[Page 8045]]

provisions of the Additional Procedures Order that was issued with this 
notice.
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    \32\ An NRC staff determination to grant access to SGI may not 
be challenged.
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    M. The Commission expects that the NRC staff and the presiding 
officer will consider and resolve requests for access to SUNSI or SGI, 
and motions for protective orders, in a timely fashion in order to 
minimize any unnecessary delays in identifying those petitioners who 
have standing and who have propounded contentions meeting the 
requirements in this notice. Attachment 2 to this order summarizes the 
target schedule for processing and resolving requests under these 
procedures.
    It is so ordered.

    Dated at Rockville, Maryland, this 4th day of February 2020.

    For the Nuclear Regulatory Commission.

Annette L. Vietti-Cook,

Secretary of the Commission.
     
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    \33\ The completion time for access determinations may vary 
based on the information revealed during the background check 
(including a criminal history records check), and because some 
portion of the background check is usually conducted by agencies 
other than the NRC, the processing time may vary and is difficult to 
predict with any certainty. However, the NRC staff will make its 
utmost efforts to complete all activities associated with requests 
for access to SGI as soon as possible.

  Attachment 2--Target Schedule for Processing and Resolving Requests for Access to Sensitive Unclassified Non-
                      Safeguards Information and Safeguards Information in This Proceeding
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                         Day                                                Event/activity
----------------------------------------------------------------------------------------------------------------
0...................................................  Publication of Federal Register notice of intended
                                                       operation, including order with instructions for access
                                                       requests.
10..................................................  Deadline for submitting requests for access to Sensitive
                                                       Unclassified Non[dash]Safeguards Information (SUNSI) and/
                                                       or Safeguards Information (SGI) with information:
                                                       Supporting the standing of a potential party identified
                                                       by name and address; describing the need for the
                                                       information in order for the potential party to
                                                       participate meaningfully in this adjudicatory proceeding;
                                                       demonstrating that access should be granted (e.g.,
                                                       showing technical competence for access to SGI); and, for
                                                       SGI, including application fee for fingerprint/background
                                                       check.
20..................................................  Nuclear Regulatory Commission (NRC) staff informs the
                                                       requestor of the staff's determination on whether the
                                                       request for access provides a reasonable basis to believe
                                                       standing can be established and shows (1) need for SUNSI
                                                       or (2) need to know for SGI. (For SUNSI, NRC staff also
                                                       informs any person whose interest independent of the
                                                       proceeding would be harmed by the release of the
                                                       information.) If NRC staff makes the finding of need for
                                                       SUNSI and likelihood of standing, NRC staff begins
                                                       document processing (preparation of redactions or review
                                                       of redacted documents). If NRC staff makes the finding of
                                                       need to know for SGI and likelihood of standing, NRC
                                                       staff continues processing the background check
                                                       (including fingerprinting for a criminal history records
                                                       check), and begins information processing (preparation of
                                                       redactions or review of redacted documents), and
                                                       readiness inspections.
25..................................................  If NRC staff finds no ``need,'' no ``need to know,'' or no
                                                       likelihood of standing, the deadline for the requestor to
                                                       file a request for review seeking a ruling to reverse the
                                                       NRC staff's denial of access; NRC staff files copy of
                                                       access determination with the Chief Administrative Judge.
                                                       If NRC staff finds ``need'' for SUNSI, the deadline for
                                                       any person whose interest independent of the proceeding
                                                       would be harmed by the release of the information to file
                                                       a request for review seeking a ruling to reverse the NRC
                                                       staff's grant of access.
30..................................................  Deadline for NRC staff reply to requests for review of NRC
                                                       staff determination(s).
30..................................................  (Receipt +20) If NRC staff finds standing and need for
                                                       SUNSI, deadline for NRC staff to complete information
                                                       processing and file motion for protective order and draft
                                                       non-disclosure affidavit. Deadline for applicant/licensee
                                                       to file non-disclosure agreement for SUNSI.
60..................................................  Deadline for submitting a hearing request containing: (i)
                                                       A demonstration of standing and (ii) all contentions
                                                       whose formulation does not require access to SUNSI and/or
                                                       SGI (+25 for answers to hearing request).
Staff SGI Determination Date + 7....................  Deadline for requestor to seek reversal of a final adverse
                                                       NRC Office of Administration trustworthiness or
                                                       reliability determination under 10 CFR 2.336(f)(1)(iv).
Staff SGI Determination Date + 10 \33\..............  If NRC staff finds standing, need to know for SGI, and
                                                       trustworthiness and reliability, deadline for NRC staff
                                                       to file motion for protective order and draft non-
                                                       disclosure affidavit.
A...................................................  If access granted: Issuance of presiding officer decision
                                                       on motion for protective order for access to sensitive
                                                       information (including schedule for providing access and
                                                       submission of contentions) or decision reversing a final
                                                       adverse determination by the NRC staff.
A + 3...............................................  Deadline for filing executed non-disclosure affidavits.
                                                       Access provided to SUNSI and/or SGI consistent with
                                                       decision issuing the protective order.
Receipt of Access + 20 days.........................  Deadline for submission of contentions whose development
                                                       depends upon access to SUNSI and/or SGI. However, if more
                                                       than 20 days remain between the requestor's access to the
                                                       information and the deadline for filing the hearing
                                                       request (as established in the notice of intended
                                                       operation), the requestor may file its SUNSI or SGI
                                                       contentions by that later deadline.
Contention Receipt + 14 days........................  (Contention receipt + 14 days) Answers to contentions
                                                       whose development depends upon access to SUNSI and/or
                                                       SGI.
Filing of answers + 30..............................  Decision on contention admissibility.
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[FR Doc. 2020-02443 Filed 2-11-20; 8:45 am]
 BILLING CODE 7590-01-P