ML22276A246
| ML22276A246 | |
| Person / Time | |
|---|---|
| Site: | Erwin |
| Issue date: | 10/03/2022 |
| From: | Kevin Roach NRC/OGC |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| 70-143-LA, RAS 56469, TBD | |
| Download: ML22276A246 (6) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of NUCLEAR FUEL SERVICES, INC. Docket No. 70-143-LA (Application to amend Special Nuclear Material License, Erwin, Tennessee)
NRC STAFF REPLY TO APPEAL OF DENIAL OF SUNSI ACCESS REQUEST INTRODUCTION The U.S. Nuclear Regulatory Commission Staff (Staff) is responding to Ms. Park Overalls appeal 1 of the Staffs denial 2 of her access request 3 (Request) for sensitive unclassified non-safeguards information (SUNSI) in the proceeding for a request to amend Nuclear Fuel Services, Inc.s (NFS) license for possession of special nuclear materials, SNM-124, in accordance with the Order concerning SUNSI access. Because neither Ms. Overalls Request nor her appeal of the Staffs denial satisfy the Commissions criteria for accessing SUNSI, the Board should deny her appeal.
1 Appeal to Judge Hawkens re Denial of Access to Sensitive Unclassified Non-Safeguards Information, (Sept. 28, 2022) (ADAMS Accession No. ML22271A836).
2 Letter from James R. Downs, NRC, to Park Overall, Request for Access to Sensitive Unclassified Non-Safeguards Information Related to a License Amendment for Nuclear Fuel Services, Inc. (Sept. 21, 2022) (ADAMS Accession No. ML22264A241).
3 Letter from Ms. Park Overall to NRC, RE: NRC-2022-0097 AND ALL OTHER #s LISTED BELOW 1 (Sept. 12, 2022) (ADAMS Accession No. ML22257A153). Ms. Overall filed her original Request on September 12, 2022 and a redacted version of the same document on September 14, 2022. The Staff does not contest the timeliness of her Request.
BACKGROUND The Staff published a Federal Register notice of opportunity to request a hearing on the NFS license amendment application on August 31, 2022. 4 This notice includes a table of documents associated with the license amendment application, some of which are publicly available and some of which are designated as non-public SUNSI, withheld pursuant to 10 CFR 2.390. 5 It also includes an Order establishing procedures for requesting access to SUNSI associated with the application. 6 Pursuant to the Order, the criteria for the Staffs evaluation of Ms. Overalls access request is whether (1) there is a reasonable basis to believe the petitioner is likely to establish standing to participate in this NRC proceeding, 7 and (2) there is a legitimate need for access to SUNSI.
On September 12, 2022, Ms. Overall submitted her timely Request; the Staff reviewed her Request and issued a denial of it on September 21, 2022, based on the Staffs determination that Ms. Overall did not satisfy the need criterion required for access to SUNSI.
Ms. Overall submitted her appeal of the Staffs denial of her Request on September 28, 2022, 8 to the Chief Administrative Judge, per the instructions for filing an appeal of the Staffs denial in the Order.
4 NFS License amendment application; opportunity to request a hearing and to petition for leave to intervene; order imposing procedures, 87 Fed. Reg. 53,507 (Aug. 31, 2022).
5 Id. at 53,508-09.
6 Id. at 53,510-11.
7 The Staff determined that the information regarding standing in the Request is missing certain details that would be needed to demonstrate standingeither for Ms. Overall herself or in a representative capacity for Ms. Higginsin the context of an intervention petition.
Nevertheless, in the context of this SUNSI access request, the Staff declines to contest whether she meets the standing criterion.
8 In accordance with the SUNSI access Order, an appeal of an access request denial was due five days following the issuance of the denialon September 26, 2022. But Ms. Overall did not submit her appeal of the Staffs denial until September 28, 2022, or address if she had good cause for filing after the deadline.
DISCUSSION The Commission has set out criteria for evaluating whether a person who has requested access to SUNSI has shown the requisite need to access it. 9 These need criteria are that a SUNSI request include: (1) an explanation of the importance of the requested information to the proceeding, i.e., how the information relates to the license application or to NRC requirements or guidance, and how it will assist the requester in seeking intervention; and (2) an explanation of why existing publicly available versions of the application would not be sufficient. 10 Absent a demonstrated need for SUNSI, an access request should be denied. In this case, Ms. Overalls Request does not satisfy either of the Commissions need criteria, as detailed below.
First, the purpose of providing an opportunity for public access to SUNSI in NRC proceedings is to allow for meaningful public participation in the adjudicatory process for the specific NRC action under consideration (i.e., to prepare contentions). 11 Access to SUNSI is not for conducting generalized research or engaging in information gathering for purposes unrelated to the requested licensing action. Ms. Overall, however, does not connect her Request with the present licensing action. Rather, she focuses her concerns on past contamination that she asserts is traceable to NFS, referencing a report from 2007, 12 and states that she would be very interested in what the NRC is willing to share with her. But it is unclear how information 9
See South Texas Project Nuclear Operating Co. (South Texas Project, Units 3 and 4), CLI 24, 72 NRC 451, 53-55 (2010).
10 Id.
11 See Susquehanna Nuclear, LLC (Susquehanna Steam Electric Station, Units 1 and 2), CLI-17-4, 85 NRC 59, 67 (2017).
12 Agency for Toxic Substances and Disease Registry, Public Health Assessment for Nuclear Fuel Services, Inc., (May 29, 2007) (ADAMS Accession No. ML22255A195). Beyond merely submitting this report, Ms. Overall does not attempt to reference any specific part of it with respect to the present license amendment request. It is not even clear that the report relates to NRC licensed activities at all because Conclusion 4 states [t]he conclusions of this public health assessment do not apply to the issues surrounding the use of radioactive materials by the Nuclear Fuel Services, Inc. Report at 25.
about possible contamination from 2006 could bear on the review of the license amendment applicationMs. Overall does not say. These concerns are outside the scope of the present license amendment proceeding, and her stated interest in what the NRC is willing to share does not provide a specific basis related to the requested amendment to demonstrate a need for SUNSI.
Relatedly, a person seeking SUNSI access must express sufficient familiarity with the application to articulate concerns that directly relate to the application, and to explain why having access to the information redacted from the application is necessary to either formulate or buttress a contention. 13 In her appeal, Ms. Overall suggests that it is impossible for her to do this because some documents in the application have been withheld as SUNSI. But SNM-124 Chapter 1, which includes general process information related to changes that would occur because of the license amendment, and the Environmental Report are both publicly available and provide information about the requested amendment. 14 Ms. Overall does not cite any of this publicly available application information or state that she has read it. Further, she does not address any general topics regarding the license amendment that she would seek to challenge, much less specify what portions she believes may have inadequacies or omissions. Therefore, she does not satisfy the requirement to explain the insufficiency of publicly available information with respect to her ability to meaningfully participate in the proceeding.
13 Susquehanna Nuclear, CLI-17-4, 85 NRC at 67.
14 See 87 Fed. Reg. 53,507, 53,508-09.
CONCLUSION Ms. Overall does not demonstrate that she meets the criteria for access to SUNSI in this proceeding. Although she may meet the standing criterion, she does not meet the need criterion, as explained above. Therefore, her appeal of the Staffs denial of her Request should be denied.
/Signed (electronically) by/
Kevin C. Roach Counsel for NRC Staff Mail Stop: O-14-A44 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: (202) 425-2664 E-mail: Kevin.Roach@nrc.gov Dated in Atlanta, GA this 3rd day of October 2022
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of NUCLEAR FUEL SERVICES, INC. Docket No. 70-143-LA (Application to amend Special Nuclear Material License, Erwin, Tennessee)
Certificate of Service Pursuant to 10 C.F.R § 2.305, I hereby certify that copies of the foregoing NRC STAFF REPLY TO APPEAL OF DENIAL OF SUNSI ACCESS REQUEST dated October 3, 2022, have been served upon the Electronic Information Exchange (the NRCs E-Filing System), in the captioned proceeding, this 3rd day of October 2022.
/Signed (electronically) by/
Kevin C. Roach Counsel for NRC Staff Mail Stop: O-14-A44 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: (202) 425-2664 E-mail: Kevin.Roach@nrc.gov Dated in Atlanta, GA this 3rd day of October 2022