[Federal Register Volume 73, Number 205 (Wednesday, October 22, 2008)]
[Notices]
[Pages 63029-63033]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-25293]


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NUCLEAR REGULATORY COMMISSION

[Docket No. 63-001; CLI-08-25]


In the Matter of U.S. Department of Energy (High Level Waste 
Repository); Notice of Hearing and Opportunity To Petition for Leave To 
Intervene on an Application for Authority To Construct a Geologic 
Repository at a Geologic Repository Operations Area at Yucca Mountain

    COMMISSIONERS: Dale E. Klein, Chairman; Gregory B. Jaczko, Peter B. 
Lyons, Kristine L. Svinicki.

I. Notice of Hearing

    By letter dated June 3, 2008, the Department of Energy (DOE) 
submitted an application seeking authorization to construct a geologic 
repository at a geologic repository operations area at Yucca Mountain 
in Nye County, Nevada. The NRC published a notice of receipt and 
availability of this application in the Federal Register (73 FR 34348, 
corrected in 73 FR 40883 (June 17, 2008)). Notice is hereby given that 
a hearing on the application will be held at a time and place to be set 
in the future by the Nuclear Regulatory Commission (the Commission) or 
an Atomic Safety and Licensing Board (Board).
    The hearing will consider the application for construction 
authorization filed by DOE pursuant to Section 114 of the Nuclear Waste 
Policy Act of 1982 (NWPA), 42 U.S.C. 10134, and pursuant to 10 CFR 
Parts 2 and 63. The NRC Staff accepted the DOE application for 
docketing on September 8, 2008 (73 FR 53284 (September 15, 2008)), and 
the docket number established for this application is 63-001.
    The NRC Staff determined that it is practicable to adopt, with 
further supplementation, the Environmental Impact Statement (EIS) and 
supplements prepared by DOE. The Staff concluded that neither the 2002 
Final Environmental Impact Statement (FEIS) nor the 2008 Final 
Supplemental Environmental Impact Statement (Repository Supplemental 
EIS) adequately address all the impacts on groundwater, or from surface 
discharges of groundwater, from the proposed action. The Staff 
therefore found that additional supplementation is needed to ensure 
that the 2002 FEIS and 2008 Repository Supplemental EIS are adequate. 
The basis for the Staff's position is presented in the ``U.S. Nuclear 
Regulatory Commission Staff's Adoption Determination Report for the 
U.S. Department of Energy's Environmental Impact Statements for the 
Proposed Geologic Repository at Yucca Mountain,'' which is available in 
the Agencywide Documents Access and Management System (ADAMS) online 
document system at http://www.nrc.gov/reading-rm/adams/web-based.html, 
at accession number ML082420342.
    The NRC Staff will complete a detailed technical review of the DOE 
application, and will document its findings in a safety evaluation 
report. If the Commission finds that the DOE application meets the 
applicable standards of the Atomic Energy Act of 1954, as amended 
(AEA), the NWPA, and the Commission's regulations, then the Commission 
will issue a construction authorization, in the form and containing 
such conditions and limitations, if any, as the Commission finds 
appropriate and necessary.

II. Opportunity To Petition for Leave To Intervene

    A hearing on DOE's construction authorization application will be 
held in the public interest pursuant to 10 CFR 2.101(e)(8). The hearing 
will be governed by the rules of procedure in 10 CFR Part 2, Subpart C, 
``Rules of General Applicability: Hearing Requests, Petitions to 
Intervene, Availability of Documents, Selection of Specific Hearing 
Procedures, Presiding Officer Powers, and General Hearing Management 
for NRC Adjudicatory Hearings''; Subpart J, ``Procedures Applicable to 
Proceedings for the Issuance of Licenses for the Receipt of High-Level 
Radioactive Waste at a Geologic Repository''; and Subpart G, ``Rules 
for Formal Adjudications.'' The matters of fact and law to be 
considered are whether the application satisfies the applicable safety, 
security, and technical standards of the AEA and NWPA and the NRC's 
standards in 10 CFR Part 63 for a construction authorization for a 
high-level waste geologic repository, and also whether the applicable 
requirements of the National Environmental Policy Act (NEPA) and NRC's 
NEPA regulations, 10 CFR Part 51, have been met.
    Any person whose interest may be affected by this proceeding and 
who desires to participate as a party must file a written petition for 
leave to intervene in accordance with the requirements in 10 CFR 2.309, 
including contentions that satisfy the admissibility standards

[[Page 63030]]

in Sec.  2.309. Petitioners seeking to intervene as parties must also 
comply with the procedural case management requirements set forth in 
the Advisory Pre-License Application Presiding Officer (PAPO) Board's 
Memorandum and Order, LBP-08-10 (Case Management Order Concerning 
Petitions to Intervene, Contentions, Responses, Replies, Standing 
Arguments, and Referencing or Attaching Supporting Materials), dated 
June 20, 2008, available at ADAMS accession number ML081720154, and the 
Advisory PAPO Board's Order (Regarding Contention Formatting and Tables 
of Contents), dated September 29, 2008, available at ADAMS accession 
number ML082730764. In addition, as outlined further below, the 
regulations in 10 CFR Part 2, Subpart J require electronic production, 
filing and service of all documents in this proceeding.
    In ruling on a petition to intervene in this proceeding, the 
presiding officer shall consider any failure of the petitioner to 
participate as a potential party in the pre-license application phase 
under 10 CFR Part 2, Subpart J, in addition to the factors on standing 
to intervene outlined in 10 CFR 2.309(d).
    A petition for leave to intervene must be filed no later than 60 
days after the date of publication of this notice in the Federal 
Register. A non-timely petition or contention will not be entertained 
unless the Commission, an Atomic Safety and Licensing Board, or a 
presiding officer designated to rule on the petition determines that 
the late petition or contention meets the late-filed requirements of 10 
CFR 2.309(c)(1)(i)-(viii).
    Certain hearing schedule milestones in Appendix D to 10 CFR Part 2, 
as well as the 30-day hearing petition and contention-filing deadlines 
set forth in 10 CFR 2.309(b)(2) and 51.109(a)(2) are superseded by this 
notice. A revised hearing schedule with new milestones for actions 
through the First Prehearing Conference Order appears in Section VI of 
this notice.
    Those permitted to intervene become parties to the proceeding, 
subject to any limitations in the order granting leave to intervene, 
and will have the opportunity to participate fully in the conduct of 
the hearing.
    The regulations in 10 CFR Part 2, Subpart J require electronic 
document production (via the Licensing Support Network) and electronic 
filing and service of adjudicatory documents via the Electronic 
Information Exchange (EIE). This requirement applies to all documents 
filed in the proceeding, including a petition for leave to intervene, 
and any motion or other document filed in the proceeding prior to the 
submission of a petition to intervene. Pursuant to 10 CFR 2.1012(b)(1), 
a petitioner, including a potential party given access to the Licensing 
Support Network, may not be granted party status under 10 CFR 2.309, or 
status as an interested governmental participant under 10 CFR 2.315, if 
the petitioner cannot demonstrate substantial and timely compliance 
with the requirements in 10 CFR 2.1003 at the time of the request for 
participation in the high-level waste proceeding.\1\ In addition, a 
petitioner will not be found to be in substantial and timely compliance 
unless the petitioner complies with all orders of the Pre-License 
Application Presiding Officer (PAPO) regarding electronic availability 
of documents. PAPO orders are available on the NRC's high-level waste 
electronic hearing docket at: http://hlwehd.nrc.gov/Public_HLW-EHD/home.asp, under HLW-EHD, folder titled PAPO--HLW, subfolder titled 
Orders--PAPO.
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    \1\ A person denied party or interested governmental participant 
status under 10 CFR 2.1012(b)(1) may request such status upon a 
showing of subsequent compliance with the requirements of 10 CFR 
2.1003. The subsequent admission of such a party or interested 
governmental participant shall be conditioned on accepting the 
status of the proceeding at the time of admission.
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    A petition for leave to intervene, and all filings in the 
adjudicatory proceeding, must be filed electronically in accordance 
with 10 CFR 2.1013(c)(1). At least 30 days prior to the filing deadline 
for a petition to intervene, the petitioner must contact the Office of 
the Secretary (SECY) by e-mail at: [email protected] or by calling 
(301) 415-1677, to request (1) a digital ID certificate, which allows 
the participant (or its counsel or representative) to digitally sign 
documents and access the E-Submittal server for any proceeding in which 
it is participating; and/or (2) creation of an electronic docket for 
the proceeding (even in instances in which the petitioner, or its 
counsel or representative, already holds an NRC-issued digital 
certificate). Each petitioner will need to download the Workplace Forms 
ViewerTM to access the EIE, a component of the E-Filing 
system. The Workplace Forms ViewerTM is free and is 
available at http://www.nrc.gov/site-help/e-submittals/install-viewer.html. Information about applying for a digital ID certificate is 
available on the NRC's public Web site at http://www.nrc.gov/site-help/e-submittals/apply-certificates.html.
    Once a petitioner has obtained a digital ID certificate, has had a 
docket created, and has downloaded the EIE viewer, the petitioner can 
then submit a petition for leave to intervene. Submissions should be in 
Portable Document Format (PDF) in accordance with NRC guidance 
available on the NRC public Web site at http://www.nrc.gov/site-help/e-submittals.html. Guidance for Electronic Submissions to the NRC is a 
consolidated guidance document that sets forth the technical standards 
for electronic transmission and formatting electronic documents, and 
provides instructions on how to obtain and use the agency-provided 
digital ID certificate. A person who holds a current digital ID 
certificate for use in the proceedings before the PAPO or the Advisory 
PAPO need not obtain a new certificate. That certificate will remain 
valid for this proceeding.
    Section 2.1013(c) defines service as completed when the filer/
sender receives electronic acknowledgement (``delivery receipt'') that 
the electronic submission has been placed in the recipient's electronic 
mailbox. To be timely, an electronic filing must be submitted to the 
EIE system no later than 11:59 p.m. Eastern Time on the due date.
    Upon receipt of a transmission, the E-Filing system time-stamps the 
document and sends the submitter an e-mail notice confirming receipt of 
the document. The EIE system also distributes an e-mail notice that 
provides access to the document to the NRC Office of 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 
applicant and any other participant (or their counsel or 
representative) must apply for and receive a digital ID certificate 
before a petition to intervene is filed so that they can obtain access 
to the document via the E-Filing system.
    A person filing electronically may seek assistance through the 
``Contact Us'' link located under the heading ``Additional 
Information'' on the NRC Web site at http://www.nrc.gov/site-help/e-submittals.html or by calling the NRC technical help line, which is 
available between 8:30 a.m. and 4:15 p.m., Eastern Time, Monday through 
Friday. The help line number is (800) 397-4209 or locally (301) 415-
4737.
    Documents submitted in adjudicatory proceedings will appear in the 
NRC's high-level waste electronic hearing docket at http://hlwehd.nrc.gov/Public_HLW-EHD/home.asp , unless

[[Page 63031]]

excluded pursuant to an order of the Commission, an Atomic Safety and 
Licensing Board, or a presiding officer. Participants are requested not 
to include personal privacy information, such as social security 
numbers, home addresses, or home phone numbers in the filing. With 
respect to copyrighted works, except for limited excerpts that serve 
the purpose of the adjudicatory filing and would constitute a Fair Use 
application, participants are requested not to include copyrighted 
materials in their submission.
    Documents may be examined, and/or copied for a fee, at the NRC's 
Public Document Room (PDR), located at One White Flint North, Public 
File Area 01 F21, 11555 Rockville Pike (first floor), Rockville, 
Maryland, and will be accessible electronically through the ADAMS 
Public Electronic Reading Room link at the NRC Web site http://www.nrc.gov/reading-rm/adams.html. The ADAMS accession number for the 
ADAMS package containing the DOE application is ML081560400. The ADAMS 
accession number for the ADAMS package containing DOE's Final 
Environmental Impact Statement is ML032690321, and the accession number 
for the ADAMS package containing DOE's Final Supplemental Environmental 
Impact Statement is ML081750191. The ADAMS accession number for the 
ADAMS package containing DOE's Final Rail Corridor Supplemental EIS and 
Rail Alignment EIS is ML082460227. The application is also available at 
http://www.nrc.gov/waste/hlw-disposal/yucca-lic-app.html. Persons who 
do not have access to ADAMS or who encounter problems in accessing 
documents located in ADAMS should contact the NRC Public Document Room 
(PDR) Reference staff by telephone at 1-800-397-4209, or 301-415-4737, 
or by e-mail to [email protected].

III. Additional Matters Pertaining to the Hearing and Intervention 
Requests

A. Standing as of Right

    Pursuant to 10 CFR 2.309(d)(2)(iii), the Commission shall permit 
intervention by the State and local governmental body (county, 
municipality or other subdivision) in which the geologic repository 
operations area is located, and by any affected Federally-recognized 
Indian Tribe, as defined in 10 CFR Part 63, if the contention 
requirements in 10 CFR 2.309(f) are satisfied with respect to at least 
one contention. Section 2.309(d)(2) specifies that such State, affected 
Federally-recognized Indian Tribe, and local governmental body need not 
address the standing requirements in 10 CFR 2.309(d).
    In LBP-08-10, the Advisory PAPO Board requested that the Commission 
clarify whether an ``affected unit of local government'' (AULG), as 
defined in section 2 of the NWPA, as amended (42 U.S.C. 10101), also 
need not address the standing requirements of section 2.309(d). Any 
AULG seeking party status shall be considered a party to this 
proceeding, provided that it files at least one admissible contention 
in accordance with 10 CFR 2.309. An AULG need not address the standing 
requirements under that section.

B. Environmental Contentions

    In addition to meeting NRC's regular contention admissibility 
requirements in 10 CFR 2.309(f), environmental contentions addressing 
any DOE environmental impact statement or supplement must also conform 
to the requirements and address the applicable factors outlined in 10 
CFR 51.109 governing NRC's adoption of DOE's environmental impact 
statements. The requirements of section 51.109 should be applied 
consistent with Nuclear Energy Institute, Inc. v. EPA, 373 F.3d 1251, 
1313-14 (D.C. Cir. 2004), a court decision discussing section 51.109, 
and consistent with the Commission's denial of the State of Nevada's 
petition to amend section 51.109 (73 FR 5762; January 31, 2008), and 
the Office of the General Counsel's subsequent letter clarifying the 
Commission's denial (Letter from Bradley W. Jones, Assistant General 
Counsel to Martin G. Malsch, dated March 20, 2008, ADAMS accession 
number ML080810175). Under 10 CFR 51.109(c), the presiding officer 
should treat as a cognizable ``new consideration'' an attack on the 
Yucca Mountain environmental impact statements based on significant and 
substantial information that, if true, would render the statements 
inadequate. Under 10 CFR 51.109(a)(2), a presiding officer considering 
environmental contentions should apply NRC ``reopening'' procedures and 
standards in 10 CFR 2.326 ``to the extent possible.''

C. Hearing Procedures

    The construction authorization hearing will be conducted by one or 
more presiding officers (licensing boards) that will be designated by 
the Chief Judge of the Atomic Safety and Licensing Board Panel. The 
Commission anticipates and authorizes the establishment of multiple 
licensing boards throughout the proceeding. Notice as to the membership 
of the board(s) will be published at a later date.
    In 1991, the Commission suggested that it would use the notice of 
hearing for a high-level waste (HLW) proceeding to announce detailed 
case management procedures (56 FR 7787, 7793-94 (February 26, 1991)). 
In the intervening years, however, the Atomic Safety and Licensing 
Board Panel has engaged in extensive case management planning for this 
proceeding. The Commission therefore believes that the presiding 
officer(s) in this proceeding will be in the best position to establish 
and efficiently resolve case management issues, some of which the 
Commission-authorized Advisory PAPO Board resolved in LBP-08-10.

D. Scope of the Hearing

    In accordance with 10 CFR 2.1027, in any initial decision on the 
application for construction authorization, the presiding officer shall 
make findings of fact and conclusions of law on, and otherwise give 
consideration to, only material issues put into controversy by the 
parties and determined to be litigable in the proceeding. The 
Commission has determined that the scope of the adjudicatory proceeding 
on safety, security, or technical issues is limited to litigable 
contested issues. See State of Nevada; Denial of Petition for 
Rulemaking, Docket No. PRM-2-14, available at ADAMS accession number 
ML082900618. The presiding officer has no authority or duty to resolve 
uncontested issues in those areas. See 10 CFR 2.1023(c)(2) and 10 CFR 
2.1027.
    Notwithstanding the provisions in 2.1023(c)(2) and 10 CFR 2.1027, 
the presiding officer shall make the environmental findings required by 
10 CFR 51.109(e), even on uncontested issues, ``to the extent it is not 
practicable to adopt the environmental impact statement prepared by the 
Secretary of Energy.''

E. Participation by a Non-Party

    A person who is not a party may be permitted to make a limited 
appearance statement by making an oral or written statement of his or 
her position on the issues at any session of the hearing or any pre-
hearing conference within the limits and conditions fixed by the 
presiding officer, but may not otherwise participate in the proceeding.

IV. Access to Non-public information

    Those petitioners who seek access to non-public information must 
follow the access requirements contained in the PAPO Board's Third Case 
Management Order (August 30, 2007), available at ADAMS accession number

[[Page 63032]]

ML072420327. This and other case management orders issued by the PAPO 
Board govern protection of various categories of protected and 
privileged information. The Board's case management orders are 
available on the high-level waste electronic hearing docket, Docket No. 
PAPO-00, at http://hlwehd.nrc.gov/Public_HLW-EHD/home.asp , under HLW-
EHD, folder titled PAPO--HLW, subfolder titled Orders--PAPO.

V. Motions

    To avoid unnecessary disputes and filings, a party who files a 
motion must certify, pursuant to 10 CFR 2.323, that he or she has made 
a reasonable effort to consult with counsel for the applicant and 
counsel for the NRC staff, as well as other interested counsel or 
litigants, in an effort to resolve the matter in advance of filing the 
motion. Motions must also meet all other section 2.323 requirements.

VI. Revised Hearing Schedule Milestones

    In CLI-08-18 (August 13, 2008), available at ADAMS accession number 
ML082261241, the Commission granted the State of Nevada, as well as any 
other petitioner, an additional thirty (30) days in which to file a 
petition to intervene, or a petition for status as an interested 
government participant, in this proceeding. In addition, the Commission 
proposed further modifications to the schedule codified in 10 CFR Part 
2, Appendix D.
    The Commission invited any party or potential party participating 
in the matters before the PAPO Board to provide comments on certain 
additional proposed extensions of time. The Commission also sought the 
views of the Atomic Safety and Licensing Board Panel on the 
reasonableness of current and proposed time frames. The Commission has 
considered the comments received, and has determined that the revised 
schedule below will replace certain hearing milestones set forth in 
Appendix D to 10 CFR Part 2.
    The Commission hereby doubles the time permitted to file answers 
and replies, pursuant to 10 CFR 2.309(h)(1) and (2), respectively, to 
fifty (50) and fourteen (14) days, respectively. The Commission also 
extends the period for the First Prehearing Conference from eight (8) 
to sixteen (16) days after the deadline for filing replies, and extends 
the period for issuance of the First Prehearing Conference Order from 
thirty (30) to sixty (60) days after the First Prehearing Conference. 
The revised Appendix D schedule, reflected in the table below, replaces 
only the milestones up to, and including, the First Prehearing 
Conference Order. The presiding officer retains authority to grant 
extensions of time of no more than fifteen days, and the Commission 
retains authority to grant extensions of longer than fifteen days, but 
in either case the litigant seeking the extension must follow the 
requirements of 10 CFR 2.1026.

                  Partially Revised Appendix D Schedule
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                  Day                                 Action
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0......................................  Federal Register Notice of
                                          Hearing.
60.....................................  Petition to intervene/request
                                          for hearing, w/contentions.
110....................................  Answers to intervention and
                                          interested government
                                          participant Petitions.
124....................................  Petitioner's response to
                                          answers.
140....................................  First Prehearing Conference.
200....................................  First Prehearing Conference
                                          Order identifying participants
                                          in proceeding, admitted
                                          contentions, and setting
                                          discovery and other schedules.
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    The regulatory requirements governing the balance of the Appendix D 
schedule remain unchanged.

VII. September 9, 2008, Petition

    On September 9, 2008, the State of Nevada submitted to the 
Commission a ``petition'' directed to the content of this hearing 
notice.\2\ In this petition, Nevada argues that the Commission cannot 
issue a notice of hearing unless it first resolves ``at least three 
important legal and procedural issues.'' \3\
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    \2\ Petition to Publish a Fair and Reasonable Notice of Hearing 
on DOE's Yucca Mountain Application (Sept. 9, 2008), available at 
ADAMS accession number ML082550289 (September 9 Petition). The 
procedural identity of Nevada's ``petition'' is not obvious. The 
Commission addresses the issues Nevada raises as part of this notice 
of hearing solely as a matter of expedience since they touch on 
topics the Commission already addresses independently.
    Both DOE and the NRC Staff responded to the September 9 
Petition. See U.S. Department of Energy Response to State of Nevada 
``Petition to Publish a Fair and Reasonable Notice of Hearing on 
DOE's Yucca Mountain Application'' (Sept. 19, 2008); NRC Staff's 
Response to the State of Nevada's Petition to Publish a Fair and 
Reasonable Notice of Hearing on DOE's Yucca Mountain Application 
(Sept. 19, 2008).
    \3\ September 9 Petition at 3.
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    Nevada's first issue, now partially mooted, is the lack of final 
Environmental Protection Agency (EPA) standards and implementing NRC 
rules for the post-10,000 year period. The EPA has now established 
post-10,000 year standards, and the Staff is developing implementing 
regulations.\4\ Nevada argued that potential parties cannot draft 
contentions based upon standards that have not been finalized. As a 
possible remedy, Nevada proposed that today's notice of hearing include 
a delay--essentially a bifurcation of contention-filing deadlines--with 
respect to all issues related to the EPA standards and the NRC's 
implementing rules until some date to be determined after the standards 
and rules are issued. Nevada argued alternatively that this delay could 
be avoided if the Commission declined to be bound by its Staff's 
decision to docket the application.
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    \4\ Final Rule, Public Health and Environmental Radiation 
Protection Standards for Yucca Mountain, Nevada 73 FR 61,256 
(October 15, 2008).
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    The Commission recognizes Nevada's concern but does not believe 
Nevada's extraordinary remedies are necessary, especially since the EPA 
has now issued the relevant standards, and the NRC's regulations are in 
preparation. Under the NRC's ordinary practice, Nevada and other 
hearing petitioners are free to file contentions arguing that the 
Commission may not authorize construction in the absence of 
implementing NRC rules. And they are also free to file contentions 
maintaining that DOE's application does not meet EPA's standards. Such 
contentions would require no change in the contention-filing schedule 
set out in CLI-08-18. Nevada or other hearing petitioners may amend 
their ``EPA standards''-related contentions later, after the NRC's 
implementing rules are issued, if the new NRC rules establish fresh 
grounds for contentions. Under the unusual circumstances of this case, 
where controlling agency rules have been delayed, and to ensure that no 
one is prejudiced, any contentions so amended--on EPA standards-related 
issues only--will be deemed timely for admissibility purposes if filed 
within sixty days after the Federal Register publication of the NRC 
rules implementing the new EPA standards.\5\
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    \5\ NRC rules ordinarily call on licensing boards to balance 
several factors in deciding whether to allow late-filed (or amended) 
contentions. See 10 CFR 2.309(c)(i)-(viii). In the case of the yet-
to-issue NRC rules, however, the Commission is dispensing in advance 
with all ``late-filed'' factors except the ``good cause'' factor. It 
is obvious even now that promptly-filed and well-pled contentions 
based on new, previously unavailable NRC rules--rules that will 
govern important aspects of NRC's safety review--must be admitted 
for hearing. There plainly would be ``good cause'' for filing such 
contentions late, and no conceivable justification for rejecting 
them at the threshold.
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    The second issue Nevada raises in its September 9 Petition concerns 
a petition for rulemaking it filed regarding the specification of 
issues for the mandatory hearing portion of this proceeding.\6\

[[Page 63033]]

That petition has now been ruled on, and the Commission's rulemaking 
decision is reflected in the discussion of the scope of the hearing 
addressed in Section III.D, above.\7\
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    \6\ Petition by the State of Nevada for Rulemaking to Specify 
Issues for the Yucca Mountain Mandatory Hearing (June 19, 2007).
    \7\ See State of Nevada; Denial of Petition for Rulemaking, 
Docket No. PRM-2-14, available at ADAMS accession number 
ML082900618.
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    Finally, the third issue Nevada raises in its September 9 Petition 
concerns the status of security clearances and access to classified 
information in the Yucca Mountain construction authorization 
application. Nevada argues that its representatives have not been 
informed of decisions on their security clearances and on access to 
classified information, ``notwithstanding timely applications,'' so no 
contentions based on classified information can be prepared.\8\ To 
remedy this, Nevada again asks for a bifurcation of contention-filing 
deadlines.
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    \8\ September 9 Petition at 6.
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    It is the Commission's understanding that, as of the end of July, 
one of Nevada's security clearance applications was complete and was 
being processed, another application was incomplete, and two 
applications had been withdrawn.\9\ From this, the Commission concludes 
that the timeliness of Nevada's security clearance applications is 
factually ambiguous. Moreover, it is not immediately clear that the 
perceived problem could not be remedied by the provision of redacted 
versions of classified documents that could provide a basis for the 
formulation of contentions before the security clearance application 
reviews are completed. The Commission directs the PAPO Board to resolve 
both of these questions.
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    \9\ See Letter from Aby Mohseni, Deputy Director, Licensing and 
Inspection Directorate, Division of High-Level Waste Repository 
Safety, Office of Nuclear Material Safety and Safeguards to Robert 
R. Loux, Executive Director, Agency for Nuclear Projects, Office of 
the Governor, State of Nevada (July 31, 2008), available at ADAMS 
accession number ML081910097.
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    It is so ordered.

    Dated at Rockville, Maryland, this 17th day of October, 2008.

    For the Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
 [FR Doc. E8-25293 Filed 10-21-08; 8:45 am]
BILLING CODE 7590-01-P