[Federal Register Volume 69, Number 200 (Monday, October 18, 2004)]
[Notices]
[Pages 61411-61416]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-23238]
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NUCLEAR REGULATORY COMMISSION
[Docket No. 70-7004; CLI-04-30]
USEC, Inc. (American Centrifuge Plant); Notice of Receipt of
Application for License; Notice of Availability of Applicant's
Environmental Report; Notice of Consideration of Issuance of License;
and Notice of Hearing and Commission Order
Commissioners: Nils J. Diaz, Chairman, Edward McGaffigan, Jr. and
Jeffrey S. Merrifield.
I. Receipt of Application and Availability of Documents
Notice is hereby given that the U.S. Nuclear Regulatory Commission
(NRC or the Commission) received on August 23, 2004, an application,
safety analysis report, and environmental report from USEC, Inc.
(hereinafter USEC), for a license to possess and use source, byproduct,
and special nuclear material and to enrich natural uranium to a maximum
of 10 percent U-235 by the gas centrifuge process. The plant, to be
known as the American Centrifuge Plant, would be located in Piketon,
Ohio. USEC, Inc. is a Delaware corporation.
Copies of USEC's application, safety analysis report, and
environmental report (except for portions thereof subject to
withholding from public inspection in accordance with 10 CFR 2.390,
Availability of Public Records) are available for public inspection at
the Commission's Public Document Room (PDR) at One White Flint North,
11555 Rockville Pike, Rockville, Maryland 20852. These documents are
also available for review and copying using any of the following
methods: (1) Enter the NRC's Gas Centrifuge Enrichment Facility
Licensing Web site at http://www.nrc.gov/materials/fuel-cycle-fac/gas-centrifuge.html#correspondence; (2) enter the NRC's Agency wide
Document Access and Management System (ADAMS) at http://www.nrc.gov/reading-rm/adams.html, where the accession numbers for USEC's
application (including USEC's safety analysis report and USEC's
environmental report) is ML042800551 (3) contact the PDR by calling
(800) 397-4209, faxing a request to (301) 415-3548, or sending a
request by electronic mail to [email protected]. Hard copies of the documents
are available from the PDR for a fee.
The NRC has now accepted USEC's application for docketing and
accordingly is providing this notice of hearing and notice of
opportunity to intervene on USEC's application for a license to
construct and operate a centrifuge enrichment facility. Pursuant to the
Atomic Energy Act of 1954, as amended, (Act) the NRC staff will prepare
a safety evaluation report (SER) after reviewing the application and
making findings concerning the public health and safety and common
defense and security. In addition, pursuant to the National
Environmental Policy Act of 1969 (NEPA) and the Commission's
regulations in 10 CFR part 51, NRC will complete an environmental
evaluation and prepare an environmental impact statement (EIS) before
the hearing on the issuance of a license is completed. The preparation
of the EIS will be the subject of a separate notice in the Federal
Register.
When available, the NRC staff's safety evaluation and its EIS
(except for portions thereof subject to withholding from public
inspection in accordance with 10 CFR 2.390) will also be placed in the
PDR and in ADAMS. Copies of correspondence between the NRC and USEC,
and transcripts of prehearing conferences and hearings (except for
portions thereof subject to withholding from public inspection in
accordance with 10 CFR 2.390) similarly will be made available to the
public.
If following the hearing, the Commission is satisfied that USEC has
complied with the Commission's regulations and the requirements of this
Notice and Commission Order and the Commission finds that the
application satisfies the applicable standards set forth in 10 CFR
30.33, 40.32, and 70.23, a single license will be issued authorizing
(1) the receipt, possession, use, delivery, and transfer of byproduct
(e.g., calibration sources), source and special nuclear material in the
American Centrifuge Plant; and (2) the construction and operation of
the American Centrifuge Plant. Prior to commencement of operations of
the American Centrifuge Plant, if it is licensed, in accordance with
section 193(c) of the Act and 10 CFR 70.32(k), NRC will verify through
inspection that the facility has been constructed in accordance with
the requirements of the license for such construction and operation.
The inspection findings will be published in the Federal Register.
II. Notice of Hearing
A. Pursuant to 10 CFR 70.23a and section 193 of the Act, as amended
by the Solar, Wind, Waste, and Geothermal Power Production Incentives
Act of 1990 (Pub. L. 101-575), a hearing will be conducted according to
the rules of procedure in 10 CFR part 2, Subparts A, C, G, and to the
extent that classified information becomes involved, Subpart I. The
hearing will be held under the authority of sections 53, 63, 189, 191,
and 193 of the Act. The applicant and NRC staff shall be parties to the
proceeding.
B. Pursuant to 10 CFR part 2, subpart C, the hearing shall be
conducted by an Atomic Safety and Licensing Board (Board) appointed by
the Chief Administrative Judge of the Atomic Safety and Licensing Board
Panel. Notice as to the membership of the Board will be published in
the Federal Register at a later date.
C. The matters of fact and law to be considered are whether the
application satisfies the standards set forth in this Notice and
Commission Order and the applicable standards in 10 CFR 30.33, 40.32,
and 70.23, and whether the requirements of 10 CFR part 51 have been
met.
D. If this proceeding is not a contested proceeding, as defined by
10 CFR 2.4, the Board will determine the following, without conducting
a de novo evaluation of the application: (1) Whether the application
and record of the proceeding contain sufficient information and whether
the NRC staff's review of the application has been adequate to support
findings to be made by the Director of the Office of Nuclear Materials
Safety and Safeguards, with respect to the matters set forth in
paragraph C of this section, and (2) whether the review conducted by
the NRC staff pursuant to 10 CFR part 51 has been adequate.
E. Regardless of whether the proceeding is contested or
uncontested, the Board will, in its initial decision, in accordance
with subpart A of 10 CFR part 51: Determine whether the requirements of
sections 102(2)(A), (C), and (E) of NEPA and subpart A of 10 CFR part
51 have been complied with in the proceeding; independently consider
[[Page 61412]]
the final balance among conflicting factors contained in the record of
proceeding with a view to determining the appropriate action to be
taken; and determine whether a license should be issued, denied, or
conditioned to protect the environment.
F. If the proceeding becomes a contested proceeding, the Board
shall make findings of fact and conclusions of law on admitted
contentions. With respect to matters set forth in paragraph C of this
section but not covered by admitted contentions, the Board will make
the determinations set forth in paragraph D without conducting a de
novo evaluation of the application.
G. By December 17, 2004, 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.
Petitions for leave to intervene shall be filed in accordance with the
provisions of 10 CFR 2.309. Interested persons should consult 10 CFR
part 2, section 2.309, which is available at the NRC's PDR, located at
One White Flint North, 11555 Rockville Pike (first floor), Rockville,
MD (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. If a
petition for leave to intervene is filed by the above date, the
Commission will issue an order determining standing and refer petitions
from persons with the requisite standing to the Board for further
processing in the proceeding.
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
Act 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
in response to USEC's 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 that the
petitioner disputes and the supporting reasons for each dispute, or, if
the petitioner believes that the application 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 Board
will set the time and place for any prehearing conferences and
evidentiary hearings, and the respective notices will be published in
the Federal Register.
A petition for leave to intervene and proffered contentions must be
filed 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; (2) courier,
express mail, and expedited delivery services: Office of the Secretary,
Sixteenth Floor, One White Flint North, 11555 Rockville Pike,
Rockville, Maryland 20852, Attention: Rulemaking and Adjudications
Staff; (3) e-mail addressed to the Office of the Secretary, U.S.
Nuclear Regulatory Commission, [email protected]; or (4) facsimile
transmission addressed to the Office of the Secretary, U.S. Nuclear
Regulatory Commission, Washington, DC, Attention: Rulemaking and
Adjudications Staff at (301) 415-1101, verification number is (301)
415-1966. A copy of the petition for leave to intervene and proffered
contentions should also be sent to the Office of the General Counsel,
U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, and it
is requested that copies be transmitted either by means of facsimile
transmission to (301) 415-3725 or by e-mail to [email protected]. A
copy of the petition for leave to intervene and proffered contentions
should also be sent to Donald J. Silverman, Esq., Morgan, Lewis &
Bockius, 1111 Pennsylvania Avenue, NW., Washington, DC 20004, the
attorney for the applicant.
Non-timely filings of petitions for leave to intervene, amended
petitions, and supplemental petitions will not be entertained absent a
determination by the Commission or the Board that the petition should
be granted, based upon a balancing of the factors specified in 10 CFR
2.309(c)(1)(i)-(viii).
H. A State, county, municipality, federally-recognized Indian
Tribe, or agencies thereof, may submit a petition to the Commission to
participate as an interested entity 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 December 17, 2004. The petition must be filed in
accordance with the filing instructions in paragraph G, above, for
petitions submitted under 10 CFR 2.309, 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).
I. 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 Board. Persons desiring to make a
limited appearance are requested to inform the Secretary of the
Commission by December 17, 2004.
[[Page 61413]]
III. Commission Guidance
A. Presiding Officer Determination of Contentions
The presiding officer shall issue a decision on the admissibility
of contentions no later than sixty (60) days after the petitions and
contentions are referred to the Board.
B. Novel Legal Issues
If rulings on petitions, on admissibility of contentions or the
admitted contentions themselves, raise novel legal or policy questions,
the Commission will provide early guidance and direction on the
treatment and resolution of such issues. Accordingly, the Commission
directs the Board to promptly certify to the Commission in accordance
with 10 CFR 2.319(l) and 2.323(f) all novel legal or policy issues that
would benefit from early Commission consideration should such issues
arise in this proceeding.
C. Discovery Management
(1) All parties, except the NRC staff, shall make the mandatory
disclosures required by 10 CFR 2.704 within forty-five (45) days of the
issuance of the order admitting that contention.
(2) The presiding officer, consistent with fairness to all parties,
should narrow the issues requiring discovery and limit discovery to no
more than one round for admitted contentions.
(3) All discovery against the Staff shall be governed by 10 CFR
2.336(b) and 2.709. The Staff shall comply with 10 CFR 2.336(b) no
later than 30 days after the Board order admitting contentions and
shall update the information at the same time as the issuance of the
SER or the Final Environmental Impact Statement (FEIS). Discovery under
10 CFR 2.709 shall not commence until the issuance of the particular
document, i.e., SER or EIS, unless the Board, in its discretion, finds
that commencing discovery against the Staff on safety issues before the
SER is issued, or on environmental issues before the FEIS is issued
will expedite the hearing without adversely impacting the Staff's
ability to complete its evaluation in a timely manner.
(4) No later than 30 days before the commencement of the hearing at
which an issue is to be presented, all parties other than the Staff
shall make the pretrial disclosures required by 10 CFR 2.704(c).
D. Hearing Schedule
In the interest of providing a fair hearing, avoiding unnecessary
delays in NRC's review and hearing process, and producing an informed
adjudicatory record that supports the licensing determination to be
made in this proceeding, the Commission expects that both the Board and
NRC staff, as well as the applicant and other parties to this
proceeding, will follow the applicable requirements contained in 10 CFR
part 2 and guidance in the Commission's Statement of Policy on Conduct
of Adjudicatory Proceedings, CLI-98-12, 48 NRC 18 (1998) [63 FR 41872
(August 5, 1998)] to the extent that such guidance is not inconsistent
with specific guidance in this Order. The guidance in the Statement of
Policy on Conduct of Adjudicatory Proceedings is intended to improve
the management and the timely completion of the proceeding and
addresses hearing schedules, parties' obligations, contentions and
discovery management. In addition, the Commission is providing the
following direction for this proceeding:
(1) The Commission directs the Board to set a schedule for the
hearing in this proceeding consistent with this order that establishes
as a goal the issuance of a final Commission decision on the pending
application within two-and-one-half years (30 months) from the date
that the application was received. Formal discovery against the Staff
shall be suspended until after the Staff completes its final SER and
EIS in accordance with the direction provided in paragraph C.(3) above.
(2) The evidentiary hearing with respect to issues should commence
promptly after completion of the final Staff documents (SER or EIS)
unless the Board, in its discretion, finds that starting the hearing
with respect to one or more safety issues prior to issuance of the
final SER\1\ (or one or more environmental contentions directed to the
applicant's Environmental Report) will expedite the proceeding without
adversely impacting the Staff's ability to complete its evaluations in
a timely manner.
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\1\ The Commission believes that, in the appropriate
circumstances, allowing discovery or an evidentiary hearing with
respect to safety-related issues to proceed before the final SER is
issued will serve to further the Commission's objective, as
reflected in the Statement of Policy on Conduct of Adjudicatory
Proceedings, CLI-98-12, supra, to ensure a fair, prompt, and
efficient resolution of contested issues. For example, it may be
appropriate for the Board to permit discovery against the staff and/
or the commencement of an evidentiary hearing with respect to safety
issues prior to the issuance of the final SER in cases where the
applicant has responded to the Staff's ``open items'' and there is
an appreciable lag time until the issuance of the final SER, or in
cases where the initial SER identifies only a few open items.
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(3) The Commission also believes that issuing a decision on the
pending application within about two-and-one-half years may be
reasonably achieved under the rules of practice contained in 10 CFR
part 2 and the enhancements directed by this order. We do not expect
the Board to sacrifice fairness and sound decision-making to expedite
any hearing granted on this application. We do expect the Board to use
the techniques specified in this order and in the Commission's policy
statement on the conduct of adjudicatory proceedings (CLI-98-12, supra)
to ensure prompt and efficient resolution of contested issues. See also
Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8, 13
NRC 452 (1981).
(4) If this is a contested proceeding, the Board should adopt the
following milestones, in developing a schedule, for conclusion of
significant steps in the adjudicatory proceeding.\2\
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\2\ This schedule assumes that the SER and FEIS are issued
essentially at the same time. If these documents are not to be
issued very close in time, the Board should adopt separate schedules
but concurrently running for the safety and environmental reviews
consistent with the timeframes herein for each document.
Within 10 days of Commission's order Persons found to have standing
determining standing. or entities participating
under 10 CFR 2.309(d) may
submit a motion for order
reconsideration (see below, at
Section IV.B).*
Within 20 days of Commission's order Persons found to have standing
determining standing. or entities participating
under 10 CFR 2.309(d) may
respond to any motion for
reconsideration.
Within 60 days of Commission's order ASLB decision on admissibility
determining standing and referring of contentions.
petitions and contentions to the ASLB.
Within 30 days of the ASLB decision Staff prepares hearing file.
determining admission of contentions.
Within 90 days of the ASLB decision Completion of discovery on
determining admission of contentions. admitted contentions, except
against the Staff (including
contentions on environmental
issues arising under NEPA).
[[Page 61414]]
Within 110 days of the ASLB decision Deadline for summary
determining admission of contentions. disposition motions on
admitted contentions.**
Within 150 days of the ASLB decision ASLB decision on summary
determining admission of contentions. disposition motions on
admitted contentions.
Date of issuance of final SER/EIS...... Staff updates hearing file.
Within 20 days of the issuance of the Motions to amend contentions;
final SER/EIS. motions for late-filed
contentions.
Within 40 days of the issuance of the Completion of answers and
final SER/EIS. replies to motions for amended
and late-filed contentions.
Within 50 days of the issuance of the ASLB decision on admissibility
final SER/EIS. of late-filed contentions;
deadline for summary
disposition motions on
remaining admitted
contentions.***
Within 80 days of the issuance of the Completion of discovery on late-
final SER/EIS. filed contentions; ASLB
decision on summary
disposition motions on
remaining contentions.
Within 90 days of the issuance of the Direct testimony filed on
final SER/EIS. remaining contentions and any
amended or admitted late-filed
contentions.
Within 100 days of the issuance of the Cross-examination plans filed
final SER/EIS. on remaining contentions and
any amended or admitted late-
filed contentions.
Within 105 days of the issuance of the Evidentiary hearing begins on
final SER/EIS. remaining contentions and any
amended or admitted late-filed
contentions.
Within 135 days of the issuance of the Completions of evidentiary
final SER/EIS. hearing on remaining
contentions and any amended or
admitted late-filed of final
contentions.
Within 180 days of the issuance of the Completion of findings and
final SER/EIS. replies.
Within 240 days of the issuance of the ASLB's initial decision.
final SER/EIS.
* Motions for reconsideration do not stay this schedule.
** The schedule presumes that a prehearing conference order would
establish the deadline for filing of summary disposition motions 20
days after close of discovery, consistent with 10 CFR 2.710(a),
answers to be filed 10 days after filing of any motion, replies to be
filed 10 days after any answer, and the Board to issue a decision on
any summary disposition motion 20 days thereafter.
*** No summary disposition motions on late-filed contentions are
contemplated.
To meet these milestones, the Board should direct the participants
to serve all filings by electronic mail (in order to be considered
timely, such filings must be received by the Board and parties no later
than midnight eastern time on the date due, unless otherwise designated
by the Board), followed by conforming hard copies that may be sent by
regular mail. If participants do not have access to electronic mail,
the Board should adopt other expedited methods of service, such as
express mail, which would ensure receipt on the due date (``in-hand'').
If pleadings are filed by electronic mail, or other expedited methods
of service which would ensure receipt on the due date, the additional
period provided in our regulations for responding to filings served by
first-class mail or express delivery shall not be applicable. See 10
CFR 2.306.
In addition, to avoid unnecessary delays in the proceeding, the
Board should not grant requests for extensions of time absent
unavoidable and extreme circumstances. Although summary disposition
motions are included in the schedule above, the Board shall not
entertain motions for summary disposition under 10 CFR 2.710, unless
the Board finds that such motions are likely to expedite the
proceeding. Unless otherwise justified, the Board shall provide for the
simultaneous filing of answers to proposed contentions, responsive
pleadings, proposed findings of fact, and other similar submittals.
(5) Parties are obligated in their filings before the Board and the
Commission to ensure that their arguments and assertions are supported
by appropriate and accurate references to legal authority and factual
basis, including, as appropriate, citation to the record. Failure to do
so may result in material being stricken from the record or, in extreme
circumstances, in a party being dismissed from the proceeding.
(6) The Commission directs the Board to inform the Commission
promptly, in writing, if the Board determines that any single milestone
could be missed by more than 30 days. The Board must include an
explanation of why the milestone cannot be met and the measures the
Board will take to mitigate the failure to achieve the milestone and
restore the proceeding to the overall schedule.
E. Commission Oversight
As in any proceeding, the Commission retains its inherent
supervisory authority over the proceeding to provide additional
guidance to the Board and participants and to resolve any matter in
controversy itself.
IV. Applicable Requirements
A. The Commission will license and regulate byproduct, source, and
special nuclear material at the American Centrifuge Plant in accordance
with the Atomic Energy Act of 1954, as amended. Section 274c.(1) of the
Act was amended by Public Law 102-486 (October 24, 1992) to require the
Commission to retain authority and responsibility for the regulation of
uranium enrichment facilities. Therefore, in compliance with law, the
Commission will be the sole licensing and regulatory authority with
respect to byproduct, source, and special nuclear material for the
American Centrifuge Plant, and with respect to the control and use of
any equipment or device in connection therewith.
Many rules and regulations in 10 CFR chapter I are applicable to
the licensing of a person to receive, possess, use, transfer, deliver,
and process byproduct, source and special nuclear material in the
quantities that would be possessed at the American Centrifuge Plant.
These include 10 CFR parts 19, 20, 21, 30, 40, 51, 70, 71, 73, 74, 95,
140, 170, and 171 for the licensing and regulation of byproduct,
source, and special nuclear material, including requirements for
notices to workers, reporting of defects, radiation protection, waste
disposal, decommissioning funding, and insurance.
With respect to these regulations, the Commission notes that this
is the third proceeding involving the licensing of an enrichment
facility. The Commission issued a number of decisions in an earlier
proceeding regarding a proposed site in Homer, Louisiana. These final
decisions, Louisiana Energy Services (Clairborne Enrichment Center),
CLI-92-7, 35 NRC 93 (1992); Louisiana Energy Services (Clairborne
Enrichment Center), CLI-97-15, 46 NRC 294 (1997); and Louisiana Energy
Services (Clairborne Enrichment Center), CLI-98-3, 47 NRC 77 (1998);
resolve a number of issues concerning uranium enrichment licensing and
may be relied upon as precedent.
Consistent with the Act, and the Commission's regulations, the
[[Page 61415]]
Commission is providing the following direction for licensing uranium
enrichment facilities:
1. Environmental Issues
(a) General: 10 CFR part 51 governs the preparation of an
environmental report and an EIS for a materials license. USEC's
environmental report and the NRC staff's associated EIS are to include
a statement on the alternatives to the proposed action, including a
discussion of the no-action alternative.
(b) Treatment of depleted uranium hexafluoride tails: As to the
treatment of the disposition of depleted uranium hexafluoride tails
(depleted tails) in these environmental documents, unless USEC
demonstrates a use for uranium in the depleted tails as a potential
resource, the depleted tails will be considered waste. An approach for
disposition of tails that is consistent with section 3113 of the USEC
Privatization Act constitutes a ``plausible strategy'' for disposition
of the USEC depleted tails. The Commission is considering matters of
law applicable to disposition of tails which may be dispositive of
matters arising in a USEC proceeding. See Louisiana Energy Services
(National Enrichment Facility), CLI-04-25, slip op. at 5 (Aug. 18,
2004). The NRC staff may consider the DOE EIS in preparing the staff's
EIS. Alternatives for the disposition of depleted uranium tails will
need to be addressed in these documents. As part of the licensing
process, USEC must also address the health, safety, and security issues
associated with the storage of depleted uranium tails on site pending
removal of the tails from the site for disposal or DOE dispositioning.
2. Financial Qualifications
Review of financial qualifications for enrichment facility license
applications is governed by 10 CFR part 70. In Louisiana Energy
Services (Clairborne Enrichment Center), CLI-97-15, 46 NRC 294, 309
(1997) the Commission held that the 10 CFR part 70 financial criteria,
10 CFR 70.22(a)(8) and 70.23(a)(5), could be met by conditioning the
LES license to require funding commitments to be in place prior to
construction and operation. The specific license condition approved in
that proceeding, which addressed a minimum equity contribution of 30%
from the parents and affiliates of LES partners prior to construction
of the associated capacity and having in place long term enrichment
contracts with prices sufficient to cover both construction and
operating costs, including a return on investment, for the entire term
of the contracts prior to constructing or operating the facility is one
way to satisfy the requirements of 10 CFR part 70.
3. Antitrust Review
The USEC enrichment facility is subject to sections 53 and 63 of
the Act, and is not a production and utilization facility licensed
under section 103. Consequently, the NRC does not have antitrust
responsibilities for USEC similar to the antitrust responsibilities
under section 105 of the Act. The NRC will not entertain or consider
antitrust issues in connection with the USEC application in this
proceeding.
4. Foreign Ownership
Section 193(f) of the Act addresses foreign ownership, control and
domination of enrichment facilities with regard to USEC and its
successors. The requirements of section 193(f) are incorporated in 10
CFR 70.40.
5. Creditor Requirements
Pursuant to section 184 of the Act, the creditor regulations in 10
CFR 50.81 shall apply to the creation of creditor interests in
equipment, devices, or important parts thereof, capable of separating
the isotopes of uranium or enriching uranium in the isotope U-235. In
addition, the creditor regulations in 10 CFR 70.44 shall apply to the
creation of creditor interests in special nuclear material. These
creditor regulations may be augmented by license conditions as
necessary to allow ownership arrangements (such as sale and leaseback)
not covered by 10 CFR 50.81, provided it can be found that such
arrangements are not inimical to the common defense and security of the
United States.
6. Classified Information
All matters of classification of information related to the design,
construction, operation, and safeguarding of the American Centrifuge
Plant shall be governed by classification guidance in ``DOE
Classification Guide for Isotope Separation by the Gas Centrifuge
Process (CG-IGC-1)'' (June 2002) and any later versions. Any person
producing such information must adhere to the criteria in CG-IGC-1. All
decisions on questions of classification or declassification of
information shall be made by appropriate classification officials in
the NRC and are not subject to de novo review in this proceeding.
7. Access to Classified Information
Portions of USEC's application for a license are classified
Restricted Data or National Security Information. Persons needing
access to those portions of the application will be required to have
the appropriate security clearance for the level of classified
information to which access is required. Access requirements apply
equally to intervenors, their witnesses and counsel, employees of the
applicant, its witnesses and counsel, NRC personnel, and others. Any
person who believes that he or she will have a need for access to
classified information for the purpose of this licensing proceeding,
including the hearing, should immediately contact the NRC, Division of
Fuel Cycle Safety and Safeguards, Washington, DC 20555, for information
on the clearance process. Telephone calls may be made to Linda
Marshall, Licensing Assistant, Special Projects Branch. Telephone:
(301) 415-8129.
8. Obtaining NRC Security Facility Approval and for Safeguarding
Classified Information Received or Developed Pursuant to 10 CFR Part 95
Any person who requires possession of classified information in
connection with the licensing proceeding may process, store, reproduce,
transmit, or handle classified information only in a location for which
facility security approval has been obtained from the NRC's Division of
Nuclear Security (NSIR), Washington, DC 20555. Telephone calls may be
made to A. Lynn Silvious, Chief, Information Security Section.
Telephone: (301) 415-2214.
B. Reconsideration
The above guidance does not foreclose the applicant, any person
admitted as a party to the hearing, or an entity participating under 10
CFR 2.315(c) from litigating material factual issues necessary for
resolution of contentions in this proceeding. Persons found by the
Commission to have standing and entities participating under 10 CFR
2.315(c) as of the date of the Commission's order on standing may also
move the Commission to reconsider any portion of Section IV of this
Notice and Commission Order where there is no clear Commission
precedent or unambiguously governing statutes or regulations. Any
motion to reconsider must be filed within 10 days after the
Commission's order on standing. The motion must contain all technical
or other arguments to support the motion. Other persons granted
standing and entities participating under 10 CFR 2.315(c), including
the applicant and the NRC staff, may respond to motions for
reconsideration within 20 days of the Commission's Order. Motions will
be ruled upon by the Commission. A motion for reconsideration does not
stay the schedule set out above in section III.D.(4). However, if the
Commission grants a motion for reconsideration, it will, as necessary,
provide direction on adjusting the hearing schedule.
[[Page 61416]]
V. Pending Energy Legislation
The Energy Policy Act of 2003, H.R. 6, is currently pending in
Congress. H.R. 6, as currently constituted, contains provisions that
address the manner in which certain issues are to be dealt with and a
schedule for overall Commission consideration of an application for
licensing an uranium enrichment facility. In the event that H.R. 6 is
enacted, the Commission may need to issue an additional order to
conform guidance and schedules for the USEC application to any new
statutory requirements.
VI. Notice of Intent Regarding Classified Information
As noted above, a hearing on this application will be governed by
10 CFR part 2, subparts A, C, G, and to the extent classified material
becomes involved, subpart I. Subpart I requires in accordance with 10
CFR 2.907 that the NRC staff file a notice of intent if, at the time of
publication of Notice of Hearing, it appears that it will be
impracticable for the staff to avoid the introduction of Restricted
Data or National Security Information into a proceeding. The applicant
has submitted portions of its application that are classified. The
Commission notes that, since the entire application becomes part of the
record of the proceeding, the NRC staff has found it impracticable for
it to avoid the introduction of Restricted Data of National Security
Information into the proceeding.
It is so ordered.
Dated at Rockville, Maryland, this 7th day of October, 2004.
For the Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. 04-23238 Filed 10-15-04; 8:45 am]
BILLING CODE 7590-01-P