[Federal Register Volume 75, Number 47 (Thursday, March 11, 2010)]
[Notices]
[Pages 11566-11571]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-5252]
=======================================================================
-----------------------------------------------------------------------
NUCLEAR REGULATORY COMMISSION
[Docket No. 50-412; NRC-2010-0086]
Firstenergy Nuclear Operating Company, Firstenergy Nuclear
Generation Corp., Ohio Edison Company, The Toledo Edison Company;
Notice of Consideration of Issuance of Amendment to Facility Operating
License for Beaver Valley Power Station, Unit No. 2; Opportunity for A
Hearing, and Order Imposing Procedures for Access to Sensitive
Unclassified Non-Safeguards Information
AGENCY: Nuclear Regulatory Commission.
ACTION: Order and notice of license amendment request, opportunity to
comment, opportunity to request a hearing.
-----------------------------------------------------------------------
DATES: Comments must be filed by April 12, 2010. A request for a
hearing must be filed by May 10, 2010.
FOR FURTHER INFORMATION CONTACT: Nadiyah Morgan, Project Manager, Plant
Licensing Branch I-1, Division of Operating Reactor Licensing, Office
of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission,
Rockville, Maryland 20852-2738. Telephone: (301) 415-1016; fax number:
(301) 415-2102; e-mail: [email protected].
ADDRESSES: Please include Docket ID NRC-2010-0086 in the subject line
of your comments. Comments submitted in writing or in electronic form
will be posted on the NRC Web site and on the Federal rulemaking Web
site Regulations.gov. Because your comments will not be edited to
remove any identifying or contact information, the NRC cautions you
against including any information in your submission that you do not
want to be publicly disclosed.
The NRC requests that any party soliciting or aggregating comments
received from other persons for submission to the NRC inform those
persons that the NRC will not edit their comments to remove any
identifying or contact information, and therefore, they should not
include any information in their comments that they do not want
publicly disclosed.
You may submit comments by any one of the following methods.
Federal Rulemaking Web site: Go to http://www.regulations.gov and
search for documents filed under Docket ID NRC-2010-0086. Comments may
be submitted electronically through this Web site. Address questions
about NRC dockets to Carol Gallagher 301-492-3668; e-mail
[email protected].
Mail comments to: Michael T. Lesar, Chief, Rulemaking and
Directives Branch (RDB), Office of Administration, Mail Stop: TWB-05-
B01M, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, or
by fax to RDB at (301) 492-3446.
To access documents related to this notice see Section V, Further
Information.
SUPPLEMENTARY INFORMATION:
I. Introduction
The U.S. Nuclear Regulatory Commission (NRC or the Commission) is
considering issuance of an amendment to Facility Operating License No.
NPF-73, issued to FirstEnergy Nuclear Operating Company (licensee) for
operation of the Beaver Valley Power Station, Unit No. 2 (BVPS-2),
located in Shippingport, Pennsylvania.
The proposed amendment would revise the BVPS-2 Technical
Specifications to support the installation of high density fuel storage
racks in the BVPS-2 spent fuel pool. The amendment application dated
April 9, 2009 (Agencywide Documents Access and Management System
(ADAMS) Accession No. ML091210251), was supplemented by letters dated
June 15, 2009 (ADAMS Accession No. ML091680614) and January 18, 2010.
Access to these documents is discussed in Section V, Further
Information. The January 18, 2010, letter and a portion of the June 15,
2009, letter contain sensitive unclassified non-safeguards information
(SUNSI), and are not available to the public. See Section V, Further
Information, and the Order providing instructions for requesting access
to the withheld information.
Before issuance of the proposed license amendment, the Commission
will have made findings required by the Atomic Energy Act of 1954, as
amended (the Act), and the Commission's regulations.
The Commission has made a proposed determination that the amendment
request involves no significant hazards consideration. Under the
Commission's regulations in Title 10 of the Code of Federal Regulations
(10 CFR), Section 50.92, this means that operation of the facility in
accordance with the proposed amendment would not (1) involve a
significant increase in the probability or consequences of an accident
previously evaluated; or (2) create the possibility of a new or
different kind of accident from any accident previously evaluated; or
(3) involve a significant reduction in a margin of safety. As required
by 10 CFR 50.91(a), the licensee has provided its analysis of the issue
of no significant hazards consideration, which is presented below:
1. Does the proposed change involve a significant increase in
the probability or consequences of an accident previously evaluated?
Response: No. The relevant accidents previously evaluated are
limited to the fuel handling and criticality accidents.
The fuel storage racks are not a design basis accident
initiator. The potential contribution to the applicable design basis
accident (a fuel handling accident) has been evaluated by
considering three types of fuel assembly drop scenarios. The three
types of scenarios are a shallow drop, a deep drop and a fuel to
fuel drop. The shallow drop postulates that the fuel assembly drops
vertically and hits the top of a rack. The deep drop postulates that
the fuel assembly falls through an empty storage cell impacting the
rack baseplate. The fuel to fuel drop postulates that a fuel
assembly drops on top of a stored fuel assembly in a rack. The
structural damage to the impacted target is primarily dependent on
the mass of the falling fuel assembly and the drop height. Since the
fuel assembly mass and drop height are not significantly changed by
the installation of the high density racks, the postulated
structural damage to impacted targets are also not significantly
changed due to the installation of the high density racks.
The physical limitations of the racks and the administrative and
operational controls used to load fuel assemblies into the spent
fuel pool ensure that fuel assemblies are stored in compliance with
the applicable fuel storage requirements, both during and following
the installation phase of the reracking project. These controls will
remain in effect and will continue to protect against
[[Page 11567]]
criticality and fuel handling accidents during and following the
installation phase of the reracking project. Therefore, there is no
significant impact on the probability of fuel handling or
criticality accidents.
The criticality analysis applicable to the existing racks has
not changed from what was approved by Amendment 165 for BVPS-2
issued on March 27, 2008. The new criticality analysis defines new
spent fuel storage requirements based on enrichment and burnup
limits. The new analysis demonstrates that keff remains
below 1.0 with zero soluble boron in the spent fuel pool, and that
keff remains less than or equal to 0.95 for the entire
pool with credit for soluble boron under non-accident and accident
conditions with a 95% probability at a 95% confidence level. As a
result potential consequences of accidents previously evaluated
remain unchanged for either type of rack.
The proposed installation of the high density racks, and the
coexistence of the existing and high density racks in the spent fuel
pool during the installation phase, does not result in changes to
the spent fuel pool cooling system and therefore the probability of
a loss of spent fuel pool cooling is not increased. The consequences
of a loss of spent fuel pool cooling were evaluated and found to not
involve a significant increase as a result of the proposed changes.
A thermal-hydraulic evaluation for the loss of spent fuel pool
cooling was performed. The analysis determined that the minimum time
to boil provides sufficient time for the operators to restore
cooling or establish an alternate means of cooling following a
complete loss of forced cooling. Therefore, the proposed change
represents no significant increase in the consequences of loss of
spent fuel pool cooling for either type of rack.
Therefore, the proposed installation of high density fuel
storage racks and the resulting proposed Technical Specifications
changes do not involve a significant increase in the probability or
consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or
different kind of accident from any accident previously evaluated?
Response: No. The relevant types of accidents previously
evaluated are limited to criticality and fuel handling accidents.
Although the new analysis will increase the maximum storage
capacity, implementation of fuel loading requirements and fuel
handling activities will continue to be performed under
administrative and operational controls. The utilization of the
additional storage capacity within the allowances of the revised
analysis will not create the possibility of a new or different kind
of accident from any accident previously evaluated.
Other than the removal of the existing racks and installation of
the high density racks, no new or different activities are
introduced as a result of the proposed changes. The drop of a high
density rack during the installation phase has been described and
evaluated as part of this submittal. This evaluation produced
acceptable results. The drop of an existing rack during its removal
is bounded by this evaluation because a new rack is heavier than an
existing rack. The supporting evaluation also considered dropping
items into the fuel cask area or onto the cover that will be placed
over the cask pit area during the installation of the new racks. All
of the items to be installed in or over the fuel cask area weigh
much less than a spent fuel cask, for which the fuel cask area was
designed. As such, the drop of any of these items onto the floor of
the fuel cask area would be bounded by a spent fuel cask drop. With
respect to drops onto the fuel that will temporarily be stored in
the fuel cask area, the fuel cask area cover is designed to
withstand the load imposed by a rack striking it from above. Since
the fuel cask area cover would not fail due to this event, there
cannot be any impact on the fuel assemblies in the rack below it.
The evaluation also produced acceptable results for dropping any of
the three parts of the fuel cask area cover onto the fuel loaded
into the rack in the fuel cask area.
Therefore the new activities introduced because of the reracking
have been evaluated and been found to not create the possibility of
a new or different kind of accident from any accident previously
evaluated.
No changes are proposed to the spent fuel pool cooling system or
makeup systems and therefore no new accidents are considered related
to the loss of spent fuel pool cooling or makeup capability.
Therefore, the proposed installation of high density fuel
storage racks and the resulting proposed Technical Specifications
changes do not create the possibility of a new or different kind of
accident from any previously evaluated for either type of rack.
3. Does the proposed change involve a significant reduction in a
margin of safety?
Response: No. The margin to safety with respect to analyzed
accidents involves maintaining keff through fuel storage
requirements and boron concentration controls in the spent fuel
pool. The new criticality analysis demonstrates that keff
remains below 1.0 with zero soluble boron, and that keff
remains less than or equal to 0.95 for the entire pool with credit
for soluble boron under non-accident and accident conditions with a
95% probability at a 95% confidence level. This is consistent with
the current licensing basis of the BVPS-2 spent fuel pool.
The TSs controlling the water level or boron concentration of
the spent fuel pool are not being changed by this license amendment
request. Therefore, there is no significant change to the margin of
safety attributed to the water level or the boron required when the
spent fuel pool is fully flooded with borated water or the boron
concentration required for accident or a boron dilution event for
either type of rack.
One of the proposed changes to the TSs is being made to assure
that the existing (Boraflex) racks and the high density (Metamic)
racks are neutronically decoupled during the installation phase of
the reracking project. This temporary requirement results in the
existing and new criticality analyses both being valid during the
installation phase. Following the completion of the installation of
the high density racks, the new criticality analysis becomes the
licensing basis of the BVPS-2 spent fuel pool.
The structural analysis of the high density racks, along with
the evaluation of the spent fuel pool structure, indicates that the
integrity of these structures will be maintained during and
following installation of the high density racks. The previously
performed structural analysis of the existing racks resulted in the
same conclusion. Since the structural requirements are satisfied,
the applicable safety margins are not significantly reduced for
either type of rack.
The proposed change includes a coupon sampling program that will
monitor the physical properties of the Metamic absorber material.
The monitoring program provides a method of verifying that the
neutron absorber assumptions used in the spent fuel pool criticality
analyses remain valid.
Therefore, the proposed installation of high density fuel
storage racks and the resulting proposed TSs changes do not involve
a significant reduction in margin of safety for either type of rack.
The NRC staff has reviewed the licensee's analysis and, based on
this review, it appears that the three standards of 10 CFR 50.92(c) are
satisfied. Therefore, the NRC staff proposes to determine that the
amendment request involves no significant hazards consideration.
The Commission is seeking public comments on this proposed
determination. Any comments received within 30 days after the date of
publication of this notice will be considered in making any final
determination. You may submit comments using any of the methods
discussed under the ADDRESSES caption.
Normally, the Commission will not issue the amendment until the
expiration of 60 days after the date of publication of this notice. The
Commission may issue the license amendment before expiration of the 60-
day period provided that its final determination is that the amendment
involves no significant hazards consideration. In addition, the
Commission may issue the amendment prior to the expiration of the 30-
day comment period should circumstances change during the 30-day
comment period such that failure to act in a timely way would result,
for example, in derating or shutdown of the facility. Should the
Commission take action prior to the expiration of either the comment
period or the notice period, it will publish in the Federal Register a
notice of issuance. Should the Commission make a final No Significant
Hazards Consideration Determination, any hearing will take place after
issuance. The Commission expects that the need to take this action will
occur very infrequently.
[[Page 11568]]
II. Opportunity To Request a Hearing
Requirements for hearing requests and petitions for leave to
intervene are found in 10 CFR 2.309, ``Hearing requests, Petitions to
Intervene, Requirements for Standing, and Contentions.'' Interested
persons should consult 10 CFR Part 2, section 2.309, which is available
at the NRC's Public Document Room (PDR), located at O1 F21, One White
Flint North, 11555 Rockville Pike, Rockville, MD 20852 (or call the PDR
at (800) 397-4209 or (301) 415-4737). NRC regulations are also
accessible electronically from the NRC's Electronic Reading Room on the
NRC Web site at http://www.nrc.gov.
III. Petitions for Leave To Intervene
Any person whose interest may be affected by this proceeding and
who wishes to participate as a party in the proceeding must file a
written petition for leave to intervene. As required by 10 CFR 2.309, a
petition for leave to intervene shall set forth with particularity the
interest of the petitioner in the proceeding and how that interest may
be affected by the results of the proceeding. The petition 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 order that may be entered in the proceeding on the
petitioner's interest.
A petition for leave to intervene must also include a specification
of the contentions that the petitioner seeks to have litigated in the
hearing. For each contention, the petitioner must provide a specific
statement of the issue of law or fact to be raised or controverted, as
well as a brief explanation of the basis for the contention.
Additionally, the petitioner must demonstrate that the issue raised by
each contention is within the scope of the proceeding and is material
to the findings the NRC must make to support the granting of a license
amendment in response to the application. The petition must also
include a concise statement of the alleged facts or expert opinions
which support the position of the petitioner 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.
Finally, the petition must provide sufficient information to show that
a genuine dispute exists with the applicant on a material issue of law
or fact, including references to specific portions of the application
for amendment that the petitioner disputes and the supporting reasons
for each dispute, or, if the petitioner believes that the application
for amendment fails to contain information on a relevant matter as
required by law, the identification of each failure and the supporting
reasons for the petitioner's belief. Each contention must be one that,
if proven, would entitle the petitioner to relief.
Those permitted to intervene become parties to the proceeding,
subject to any limitations in the order granting leave to intervene,
and have the opportunity to participate fully in the conduct of the
hearing with respect to resolution of that person's admitted
contentions, including the opportunity to present evidence and to
submit a cross-examination plan for cross-examination of witnesses,
consistent with NRC regulations, policies, and procedures. The
Licensing Board will set the time and place for any prehearing
conferences and evidentiary hearings, and the appropriate notices will
be provided.
Non-timely petitions for leave to intervene and contentions,
amended petitions, and supplemental petitions will not be entertained
absent a determination by the Commission, the Licensing Board or a
Presiding Officer that the petition should be granted and/or the
contentions should be admitted based upon a balancing of the factors
specified in 10 CFR 2.309(c)(1)(i)-(viii).
A State, county, municipality, federally-recognized Indian tribe,
or agencies thereof, may submit a petition to the Commission to
participate as a party under 10 CFR 2.309(d)(2). The petition should
state the nature and extent of the petitioner's interest in the
proceeding. The petition should be submitted to the Commission by May
10, 2010. The petition must be filed in accordance with the filing
instructions in Section IV of this document, and should meet the
requirements for petitions for leave to intervene set forth in this
section, except that State and federally-recognized Indian tribes do
not need to address the standing requirements in 10 CFR 2.309(d)(1) if
the facility is located within its boundaries. The entities listed
above could also seek to participate in a hearing as a nonparty
pursuant to 10 CFR 2.315(c).
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 the provisions of 10 CFR 2.315(a). A person
making a limited appearance may make an oral or written statement of
position on the issues, but may not otherwise participate in the
proceeding. A limited appearance may be made at any session of the
hearing or at any prehearing conference, subject to such limits and
conditions as may be imposed by the Licensing Board. Persons desiring
to make a limited appearance are requested to inform the Secretary of
the Commission by May 10, 2010.
If a hearing is requested, the Commission will make a final
determination on the issue of no significant hazards consideration. The
final determination will serve to decide when the hearing is held. If
the final determination is that the amendment request involves no
significant hazards consideration, the Commission may issue the
amendment and make it immediately effective, notwithstanding the
request for a hearing. Any hearing held would take place after issuance
of the amendment. If the final determination is that the amendment
request involves a significant hazards consideration, any hearing held
would take place before the issuance of any amendment.
IV. Electronic Submissions (E-Filing)
All documents filed in NRC adjudicatory proceedings, including a
request for hearing, a petition for leave to intervene, any motion or
other document filed in the proceeding prior to the submission of a
request for hearing or petition to intervene, and documents filed by
interested governmental entities participating under 10 CFR 2.315(c),
must be filed in accordance with the NRC E-Filing rule (72 FR 49139,
August 28, 2007). The E-Filing process requires participants to submit
and serve all adjudicatory documents over the Internet, or in some
cases to mail copies on electronic storage media. Participants may not
submit paper copies of their filings unless they seek an exemption in
accordance with the procedures described below.
To comply with the procedural requirements of E-Filing, at least
ten (10) days prior to the filing deadline, the participant should
contact the Office of the Secretary by e-mail at
[email protected], or by telephone at (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
(2) advise the
[[Page 11569]]
Secretary that the participant will be submitting a request or petition
for hearing (even in instances in which the participant, or its counsel
or representative, already holds an NRC-issued digital ID certificate).
Based upon this information, the Secretary will establish an electronic
docket for the hearing in this proceeding if the Secretary has not
already established an electronic docket.
Information about applying for a digital ID certificate is
available on NRC's public Web site at http://www.nrc.gov/site-help/e-submittals/apply-certificates.html. System requirements for accessing
the E-Submittal server are detailed in NRC's ``Guidance for Electronic
Submission,'' which is available on the agency's public Web site at
http://www.nrc.gov/site-help/e-submittals.html. Participants may
attempt to use other software not listed on the Web site, but should
note that the NRC's E-Filing system does not support unlisted software,
and the NRC Meta System Help Desk will not be able to offer assistance
in using unlisted software.
If a participant is electronically submitting a document to the NRC
in accordance with the E-Filing rule, the participant must file the
document using the NRC's online, Web-based submission form. In order to
serve documents through EIE, users will be required to install a Web
browser plug-in from the NRC Web site. Further information on the Web-
based submission form, including the installation of the Web browser
plug-in, is available on the NRC's public Web site at http://www.nrc.gov/site-help/e-submittals.html.
Once a participant has obtained a digital ID certificate and a
docket has been created, the participant can then submit a request for
hearing or petition for leave to intervene. Submissions should be in
Portable Document Format (PDF) in accordance with NRC guidance
available on the NRC public Web site at http://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 e-mail notice confirming receipt of the document. The
E-Filing system also distributes an e-mail notice that provides access
to the document to the NRC Office of the General Counsel and any others
who have advised the Office of the Secretary that they wish to
participate in the proceeding, so that the filer need not serve the
documents on those participants separately. Therefore, applicants and
other participants (or their counsel or representative) must apply for
and receive a digital ID certificate before a hearing request/petition
to intervene is filed so that they can obtain access to the document
via the E-Filing system.
A person filing electronically using the agency's adjudicatory E-
Filing system may seek assistance by contacting the NRC Meta System
Help Desk through the ``Contact Us'' link located on the NRC Web site
at http://www.nrc.gov/site-help/e-submittals.html, by e-mail at
[email protected], or by a toll-free call at (866) 672-7640. The
NRC Meta System Help Desk is available between 8 a.m. and 8 p.m.,
Eastern Time, Monday through Friday, excluding government holidays.
Participants who believe that they have a good cause for not
submitting documents electronically must file an exemption request, in
accordance with 10 CFR 2.302(g), with their initial paper filing
requesting authorization to continue to submit documents in paper
format. Such filings must be submitted by: (1) First class mail
addressed to the Office of the Secretary of the Commission, U.S.
Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention:
Rulemaking and Adjudications Staff; or (2) courier, express mail, or
expedited delivery service to the Office of the Secretary, Sixteenth
Floor, One White Flint North, 11555 Rockville Pike, Rockville,
Maryland, 20852, Attention: Rulemaking and Adjudications Staff.
Participants filing a document in this manner are responsible for
serving the document on all other participants. Filing is considered
complete by first-class mail as of the time of deposit in the mail, or
by courier, express mail, or expedited delivery service upon depositing
the document with the provider of the service. A presiding officer,
having granted an exemption request from using E-Filing, may require a
participant or party to use E-Filing if the presiding officer
subsequently determines that the reason for granting the exemption from
use of E-Filing no longer exists.
Documents submitted in adjudicatory proceedings will appear in
NRC's electronic hearing docket which is available to the public at
http://ehd.nrc.gov/EHD_Proceeding/home.asp, unless excluded pursuant
to an order of the Commission, or the presiding officer. Participants
are requested not to include personal privacy information, such as
social security numbers, home addresses, or home phone numbers in their
filings, unless an NRC regulation or other law requires submission of
such information. With respect to copyrighted works, except for limited
excerpts that serve the purpose of the adjudicatory filings and would
constitute a Fair Use application, participants are requested not to
include copyrighted materials in their submission.
The Commission hereby provides notice that this is a proceeding on
an application for a license amendment falling within the scope of
section 134 of the Nuclear Waste Policy Act of 1982 (NWPA), 42 U.S.C.
10154. Under section 134 of the NWPA, the Commission, at the request of
any party to the proceeding, must use hybrid hearing procedures with
respect to ``any matter which the Commission determines to be in
controversy among the parties.''
The hybrid procedures in section 134 provide for oral argument on
matters in controversy, preceded by discovery under the Commission's
rules and the designation, following argument of only those factual
issues that involve a genuine and substantial dispute, together with
any remaining questions of law, to be resolved in an adjudicatory
hearing. Actual adjudicatory hearings are to be held on only those
issues found to meet the criteria of section 134 and set for hearing
after oral argument.
The Commission's rules implementing section 134 of the NWPA are
found in 10 CFR Part 2, Subpart K, ``Hybrid Hearing Procedures for
Expansion of Spent Fuel Storage Capacity at Civilian Nuclear Power
Reactors.'' Under those rules, any party to the proceeding may invoke
the hybrid hearing procedures by filing with the presiding officer a
written request for oral argument under 10 CFR 2.1109. To be timely,
the request must be filed together with a request for hearing/petition
to intervene, filed in accordance with 10 CFR 2.309. If it is
determined a hearing will be held, the presiding officer must grant a
timely request for oral argument. The presiding officer may grant an
untimely request for oral argument only upon a showing of good cause by
the requesting party for the failure to file on time and after
providing the other parties an opportunity to respond to the untimely
request. If the presiding officer grants a request for oral argument,
any hearing held on the application must be conducted in accordance
with the hybrid hearing procedures. In essence, those procedures limit
the time
[[Page 11570]]
available for discovery and require that an oral argument be held to
determine whether any contentions must be resolved in an adjudicatory
hearing. If no party to the proceeding timely requests oral argument,
and if all untimely requests for oral argument are denied, then the
usual procedures in 10 CFR Part 2, Subpart L apply.
Petitions for leave to intervene must be filed no later than 60
days from the date of publication of this notice. Non-timely filings
will not be entertained absent a determination by the presiding officer
that the petition or request should be granted or the contentions
should be admitted, based on a balancing of the factors specified in 10
CFR 2.309(c)(1)(i)-(viii).
V. Further Information
Documents related to the proposed action are available
electronically at the NRC's Electronic Reading Room at http://www.nrc.gov/reading-rm/adams.html. From this site, you can access the
NRC's Agencywide Documents Access and Management System (ADAMS), which
provides text and image files of NRC's public documents. Search for
these documents using the ADAMS accession numbers: the application for
amendment dated April 9, 2009, (ML091210251); and the publically-
available portions of the June 15, 2009, supplement (ML091680614),
January 18, 2010, supplement (ML093430689). As discussed above in
Section I., the January 18, 2010, supplement and a portion of the June
15, 2009, supplement contain SUNSI and are not publically available.
Instructions for requesting access to these withheld documents are
contained in the following Order.
If you do not have access to ADAMS or if there are problems in
accessing the documents located in ADAMS, contact the NRC Public
Document Room (PDR) reference staff at 1-800-397-4209, 301-415-4737 or
by e-mail to [email protected]. These documents may also be viewed
electronically on the public computers located at the NRC's PDR at
11555 Rockville Pike, Rockville, Maryland 20852. The PDR reproduction
contractor will copy documents for a fee.
Attorney for the licensee: David W. Jenkins, Assistant General
Counsel, FirstEnergy Nuclear Operating Company, Mail Stop A-GO-18, 76
South Main Street, Akron, OH 44308.
Order Imposing Procedures for Access to Sensitive Unclassified Non-
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 Non-Safeguards Information (SUNSI).
B. Within 10 days after publication of this notice of hearing and
opportunity to petition for leave to intervene, any potential party who
believes access to SUNSI is necessary to respond to this notice may
request such access. A ``potential party'' is any person who intends to
participate as a party by demonstrating standing and filing an
admissible contention under 10 CFR 2.309. Requests for access to SUNSI
submitted later than 10 days after publication will not be considered
absent a showing of good cause for the late filing, addressing why the
request could not have been filed earlier.
C. The requester shall submit a letter requesting permission to
access SUNSI to the Office of the Secretary, U.S. Nuclear Regulatory
Commission, Washington, DC 20555-0001, Attention: Rulemakings and
Adjudications Staff, and provide a copy to the Associate General
Counsel for Hearings, Enforcement and Administration, Office of the
General Counsel, Washington, DC 20555-0001. The expedited delivery or
courier mail address for both offices is: U.S. Nuclear Regulatory
Commission, 11555 Rockville Pike, Rockville, Maryland 20852. The e-mail
address for the Office of the Secretary and the Office of the General
Counsel are [email protected] and [email protected],
respectively.\1\ The request must include the following information:
---------------------------------------------------------------------------
\1\ While a request for hearing or petition to intervene in this
proceeding must comply with the filing requirements of the NRC's
``E-Filing Rule,'' the initial request to access SUNSI under these
procedures should be submitted as described in this paragraph.
---------------------------------------------------------------------------
(1) A description of the licensing action with a citation to this
Federal Register notice;
(2) The name and address of the potential party and a description
of the potential party's particularized interest that could be harmed
by the action identified in C.(1);
(3) The identity of the individual or entity requesting access to
SUNSI and the requester'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;
D. Based on an evaluation of the information submitted under
paragraph C.(3) the NRC staff will determine within 10 days of receipt
of the request whether:
(1) There is a reasonable basis to believe the petitioner is likely
to establish standing to participate in this NRC proceeding; and
(2) The requestor has established a legitimate need for access to
SUNSI.
E. If the NRC staff determines that the requestor satisfies both
D.(1) and D.(2) above, 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 \2\ setting forth terms and conditions to prevent the
unauthorized or inadvertent disclosure of SUNSI by each individual who
will be granted access to SUNSI.
---------------------------------------------------------------------------
\2\ Any motion for Protective Order or draft Non-Disclosure
Affidavit or Agreement for SUNSI must be filed with the presiding
officer or the Chief Administrative Judge if the presiding officer
has not yet been designated, within 30 days of the deadline for the
receipt of the written access request.
---------------------------------------------------------------------------
F. Filing of Contentions. Any contentions in these proceedings that
are based upon the information received as a result of the request made
for SUNSI must be filed by the requestor no later than 25 days after
the requestor is granted access to that information. However, if more
than 25 days remain between the date the petitioner is granted access
to the information and the deadline for filing all other contentions
(as established in the notice of hearing or opportunity for hearing),
the petitioner may file its SUNSI contentions by that later deadline.
G. Review of Denials of Access.
(1) If the request for access to SUNSI is denied by the NRC staff
either after a determination on standing and need for access, 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) The requester may challenge the NRC staff's adverse
determination by filing a challenge within 5 days of receipt of that
determination with: (a) The presiding officer designated in this
proceeding; (b) if no presiding officer has been appointed, the Chief
[[Page 11571]]
Administrative Judge, or if he or she is unavailable, another
administrative judge, or an administrative law judge with jurisdiction
pursuant to 10 CFR 2.318(a); or (c) if another officer has been
designated to rule on information access issues, with that officer.
H. Review of Grants of Access. A party other than the requester may
challenge an NRC staff determination granting access to SUNSI whose
release would harm that party's interest independent of the proceeding.
Such a challenge must be filed with the Chief Administrative Judge
within 5 days of the notification by the NRC staff of its grant of
access.
If challenges to the NRC staff determinations are filed, these
procedures give way to the normal process for litigating disputes
concerning access to information. The availability of interlocutory
review by the Commission of orders ruling on such NRC staff
determinations (whether granting or denying access) is governed by 10
CFR 2.311.\3\
---------------------------------------------------------------------------
\3\ Requesters should note that the filing requirements of the
NRC's E-Filing Rule (72 FR 49139; August 28, 2007) apply to appeals
of NRC staff determinations (because they must be served on a
presiding officer or the Commission, as applicable), but not to the
initial SUNSI request submitted to the NRC staff under these
procedures.
---------------------------------------------------------------------------
I. The Commission expects that the NRC staff and presiding officers
(and any other reviewing officers) will consider and resolve requests
for access to SUNSI, and 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 specificity and basis requirements in 10 CFR Part 2.
Attachment 1 to this Order summarizes the general target schedule for
processing and resolving requests under these procedures.
It is so ordered.
Dated at Rockville, Maryland, this 5th day of March 2010.
For the Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
Attachment 1--General Target Schedule for Processing and Resolving
Requests for Access to Sensitive Unclassified Non-Safeguards Information
in This Proceeding
------------------------------------------------------------------------
Day Event/activity
------------------------------------------------------------------------
0..................... Publication of Federal Register notice of
hearing and opportunity to petition for leave
to intervene, including order with instructions
for access requests.
10.................... Deadline for submitting requests for access to
Sensitive Unclassified Non-Safeguards
Information (SUNSI) with information:
supporting the standing of a potential party
identified by name and address; describing the
need for the information in order for the
potential party to participate meaningfully in
an adjudicatory proceeding.
60.................... Deadline for submitting petition for
intervention containing: (i) Demonstration of
standing; (ii) all contentions whose
formulation does not require access to SUNSI
(+25 Answers to petition for intervention; +7
petitioner/requestor reply).
20.................... Nuclear Regulatory Commission (NRC) staff
informs the requester of the staff's
determination whether the request for access
provides a reasonable basis to believe standing
can be established and shows need for SUNSI.
(NRC staff also informs any party to the
proceeding whose interest independent of the
proceeding would be harmed by the release of
the information.) If NRC staff makes the
finding of need for SUNSI and likelihood of
standing, NRC staff begins document processing
(preparation of redactions or review of
redacted documents).
25.................... If NRC staff finds no ``need'' or no likelihood
of standing, the deadline for petitioner/
requester to file a motion seeking a ruling to
reverse the NRC staff's denial of access; NRC
staff files copy of access determination with
the presiding officer (or Chief Administrative
Judge or other designated officer, as
appropriate). If NRC staff finds ``need'' for
SUNSI, the deadline for any party to the
proceeding whose interest independent of the
proceeding would be harmed by the release of
the information to file a motion seeking a
ruling to reverse the NRC staff's grant of
access.
30.................... Deadline for NRC staff reply to motions to
reverse NRC staff determination(s).
40.................... (Receipt +30) If NRC staff finds standing and
need for SUNSI, deadline for NRC staff to
complete information processing and file motion
for Protective Order and draft Non-Disclosure
Affidavit. Deadline for applicant/licensee to
file Non-Disclosure Agreement for SUNSI.
A..................... If access granted: Issuance of presiding officer
or other designated officer decision on motion
for protective order for access to sensitive
information (including schedule for providing
access and submission of contentions) or
decision reversing a final adverse
determination by the NRC staff.
A + 3................. Deadline for filing executed Non-Disclosure
Affidavits. Access provided to SUNSI consistent
with decision issuing the protective order.
A + 28................ Deadline for submission of contentions whose
development depends upon access to SUNSI.
However, if more than 25 days remain between
the petitioner's receipt of (or access to) the
information and the deadline for filing all
other contentions (as established in the notice
of hearing or opportunity for hearing), the
petitioner may file its SUNSI contentions by
that later deadline.
A + 53................ (Contention receipt +25) Answers to contentions
whose development depends upon access to SUNSI.
A + 60................ (Answer receipt +7) Petitioner/Intervenor reply
to answers.
>A + 60............... Decision on contention admission.
------------------------------------------------------------------------
[FR Doc. 2010-5252 Filed 3-10-10; 8:45 am]
BILLING CODE 7590-01-P