The Nuclear Regulatory Commission (NRC) is seeking public comment on two draft protective order templates intended for use in adjudicatory hearings related to the inspections, tests, analyses, and acceptance criteria (ITAAC) in combined licenses (COL) issued under 10 CFR Part 52.
By way of background, NRC regulations in 10 CFR Part 52 allow the NRC to issue COLs authorizing both construction and operation of a nuclear power plant in a single license. This approach is an alternative to the traditional two-step licensing process codified in 10 CFR Part 50 and is intended to facilitate early resolution of safety and environmental issues before construction begins.
To issue a COL, the NRC must make a predictive finding that the plant will be constructed and operated in accordance with the license and applicable laws. To facilitate this finding, validation benchmarks known as ITAAC are included in the license and specify both the means of verification (the inspections, tests, or analyses) and the standards that must be satisfied (the acceptance criteria). Facility operation typically cannot commence until the NRC finds that acceptance criteria are met.
NRC regulations provide that interested persons may request a hearing to dispute a licensee's satisfaction of the acceptance criteria specified in a COL. But some ITAAC proceedings may involve sensitive information such as Safeguards Information (SGI) (which is handled similar to Classified National Security Information) or Sensitive Unclassified Non-Safeguards Information (SUNSI) (which includes proprietary and security-related information). The ITAAC Hearing Procedures (published by the NRC in 2016) contemplate requests from interested persons for access to such information. If a hearing participant qualifies for such access, the presiding officer would need to issue a protective order and nondisclosure declaration.
In order to facilitate quick development of such protective orders, the NRC prepared and is seeking comment on two draft protective order templates—one for SUNSI and one for SGI. These templates would be optional; participants could, but would not be required to, rely on the templates in providing input to the presiding officer regarding the terms of a proposed protective order.
The templates are largely based on actual protective orders issued in historical adjudicatory proceedings; however, they do address certain ITAAC-specific features. For example, consistent with the accelerated ITAAC hearing schedule, petitioners are given less time to execute nondisclosure declarations, and licensees and the NRC staff are given less time to provide SUNSI or SGI to petitioners.
Furthermore, both templates are based on current requirements and policies, and would, if appropriate, be updated as necessary. For example, NRC policies regarding sensitive information are expected to change in response to the National Archives and Records Administration’s final rule regarding “Controlled Unclassified Information,” which establishes government-wide requirements for protecting sensitive unclassified information.
The NRC’s Federal Register notice requests comments on the draft templates by October 19, 2018. After reviewing the public comments, the NRC will publish the final templates in the Federal Register.