CY-03-215, Blue Ridge Environmental Defense League'S Motion for Leave to Reply to NRC Staff'S Response to Need-to-Know Appeal with Accompanying Reply

Blue Ridge Environmental Defense League'S Motion for Leave to Reply to NRC Staff'S Response to Need-to-Know Appeal with Accompanying Reply

ML043570021
Person / Time
Site:	Catawba
Issue date:	12/15/2004
From:	Curran D Blue Ridge Environmental Defense League, Harmon, Curran, Harmon, Curran, Spielberg & Eisenberg, LLP
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
50-413-OLA, 50-414-OLA, ASLBP 03-815-03-OLA, RAS 9019, SECY-03-215
Download: ML043570021 (5)

Text

December 15, 2004 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD USNRC In the Matter of December21, 2004 (10:41am)

Docket No's. 50-413-OLA, OFFICE OF SECRETARY DUKE ENERGY CORPORATION 50-414-OLA RULEMAKINGS AND ADJUDICATIONS STAFF (Catawba Nuclear Station, Units 1 and 2)

BLUE RIDGE ENVIRONMENTAL DEFENSE LEAGUE'S MOTION FOR LEAVE TO REPLY TO NRC STAFF'S RESPONSE TO NEED-TO-KNOW APPEAL Blue Ridge Environmental Defense League ("BREDL") hereby moves to file a brief reply to the U.S. Nuclear Regulatory Commission Staff's Response to BREDL's Appeal of Staff's Adverse Need-to-Know Determination Regarding SECY-03-215 (December 15, 2004) (hereinafter "Staff's Response"), for the purpose of pointing out a glaring inconsistency between the Staff's characterization of the requested document and the description of the document that is provided in the NRC guidance which cross-references it.

Counsel for BREDL has attempted to contact counsel for the Staff to ask whether the Staff would oppose this motion, but was unable to reach them.

Respectfully submitted, WaneCra Harmon, Curran, Spielberg, & Eisenberg, L.L.P.

1726 M Street N.W., Suite 600 Washington, D.C. 20036 202/328-3500 e-mail: Dcurrangharmoncurran.com December 15, 2004 eaiplate =S £c Y-o/

1e December 15, 2004 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD DOCKETED USNRC In the Matter of December21, 2004 (10

41am)

Docket No's. 50-413-OLA, OFFICE OF SECRETARY DUKE ENERGY CORPORATION 50-414-OLA RULEMAKINGS AND ADJUDICATIONS STAFF (Catawba Nuclear Station, Units 1 and 2)

BLUE RIDGE ENVIRONMENTAL DEFENSE LEAGUE'S REPLY TO NRC STAFF'S RESPONSE TO NEED-TO-KNOW APPEAL Blue Ridge Environmental Defense League ("BREDL") hereby files this brief reply to the U.S. Nuclear Regulatory Commission Staff's Response to BREDL's Appeal of Staff's Adverse Need-to-Know Determination Regarding SECY-03-215 (December 15, 2004) (hereinafter "Staff's Response"), for the purpose of pointing out a glaring inconsistency between the Staff's characterization of the requested document and the description that is provided in the NRC guidance that cross-references it.

According to the Staff, the document requested by BREDL, SECY-03-215, "Insider Threat Mitigation by Licensees," is a Staff-issued document that contains only the "preliminary recommendations" of the Staff to the Commissioners, and is therefore protected by the privilege for predecisional and deliberative documents. Staff's Response at 3-4. Aside from the fact that this is the first time the Staff has offered such an argument, it is not consistent with the available factual information regarding the nature of SECY-03-215. The NRC guidance document that references SECY-03-215, "NRC Guidance on Implementation of the April 2003 Design Basis Threat" (May 8, 2004)

(hereinafter "5/8/04 NRC Guidance Document"), describes SECY-03-215 as "Staff

Requirements SECY-03-215, "Insider Threat Mitigation by Licensees," and states that it contains physical protection measures "approved by the Commission." Id., Attachment 1 at 12 (emphasis added). See also BREDL's Appeal of Adverse Need-to-Know Determination Regarding SECY-03-215 at 3 (December 10, 2004). This language strongly indicates that the contents of SECY-03-215 were approved by the Commission.

In the alternative, it indicates the existence of a Staff Requirements Memorandum

("SRM"), somehow related to SECY-03-215, which contains the Commission-approved requirements and which may contain an explanation of the Commission's rationale for imposing those requirements.

If SECY-03-215 was approved by the Commission in an SRM, then it is a conclusive expression of the Commission's opinion that is not protected by the predecisional or deliberative process privilege. Therefore, it should be disclosed. Or if some other document exists that contains the relevant Commission requirements, but which was incorrectly labeled as SECY-03-215, then that document should be identified and disclosed. To do otherwise would unfairly allow the Staff to win what appears to be a semantic shell game.

Respectfully submitted, ianeCra Harmon, Curran, Spielberg, & Eisenberg, L.L.P.

1726 M Street N.W., Suite 600 Washington, D.C. 20036 202/328-3500 e-mail: Dcurran(harmoncurran.com December 15, 2004 2

CERTIFICATE OF SERVICE I hereby certify that on December 15, 2004, copies of (a) Blue Ridge Environmental Defense League's Motion for Leave to Reply to NRC Staffs Response to Need-to-Know Appeal, (b) Blue Ridge Environmental Defense League's Reply to NRC Staffs Response to Need-to-Know Appeal, and (c) Blue Ridge Environmental Defense League's Motion to Amend Protective Order were served on the following by e-mail and/or first-class mail, as indicated below.

Ann Marshall Young, Chair Susan L. Uttal, Esq.

Administrative Judge Antonio Fernandez, Esq.

Atomic Safety and Licensing Board Shana Zipkin, Esq.

U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop: T-3F23 Mail Stop 15 D21 Washington, D.C. 20555 U.S. Nuclear Regulatory Commission E-mail: AMY@nrc. gov Washington, D.C. 20555-0001 E-mail: slu@nrc . goy axf2@nrc. gov, Anthony J. Baratta mjb5@nrc . g0v Administrative Judge Atomic Safety and Licensing Board Mary Olson U.S. Nuclear Regulatory Commission Southeast Office, Nuclear Information and Mail Stop: T-3F23 Resource Service Washington, D.C. 20555 P.O Box 7586 E-mail: AJB5@nrc.gov Asheville, NC 28802 E-mail: nirs . se@mindspring. corn Office of Commission Appellate Adjudication U.S. Nuclear Regulatory Commission Timika Shafeek-Horton, Esq.

Mail Stop: 0-16C1 Lisa F. Vaughn, Esq.

Washington, D.C. 20555 Legal Dept. (EC-07H)

Duke Energy Corporation Thomas S. Elleman 526 South Church Street (ECI IX)

Administrative Judge Charlotte, NC 28201-1006 Atomic Safety and Licensing Board E-mail: lfVaughn@duke-energy. corn 4760 East Country Villa Drive Tucson, AZ 85718 Janet Marsh Zeller, Executive Director E-mail: elleman@eos . ncsu . edu Blue Ridge Environmental Defense League P.O. Box 88 Glendale Springs, NC 28629 E-mail: BREDL@skybest. com

2 David A. Repka, Esq.

Anne W. Cottingham, Esq.

Mark J. Wetterhahn, Esq.

Winston & Strawn, LLP 1400 L Street, N.W.

Washington, D.C. 20005-3502 E-mail: drepka@winston. com acotting@winston.com mwetterhahn@winston.com Office of the Secretary (original and two copies)

ATTN: Docketing and Service U.S. Nuclear Regulatory Commission Mail Stop: 0-16C1 Washington, D.C. 20555 E-mail: HEARINGDOCKET@nrc. gov Diane Curran