ML030270245
| ML030270245 | |
| Person / Time | |
|---|---|
| Site: | Mcguire, Catawba, McGuire  |
| Issue date: | 01/23/2003 |
| From: | Fernandez A NRC/OGC |
| To: | Atomic Safety and Licensing Board Panel |
| Byrdsong A T | |
| References | |
| +adjud/rulemjr200506, 50-369-LR, 50-370-LR, 50-413-LR, 50-414-LR, ASLBP 02-794-01-LR, RAS 5460 | |
| Download: ML030270245 (7) | |
Text
RAS 5460 January 23, 2003 DOCKETED 01/24/03 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
)
DUKE ENERGY CORPORATION ) Docket Nos. 50-369-LR
) 50-370-LR (McGuire Nuclear Station, ) 50-413-LR Units 1 and 2, ) 50-414-LR Catawba Nuclear Station, )
Units 1 and 2) )
NRC STAFFS ANSWER TO APPLICANTS MOTION TO DISMISS CONSOLIDATED CONTENTION 2 INTRODUCTION On December 23, 2002, the applicant, Duke Energy Corporation (Duke), filed its Motion to Dismiss Consolidated Contention 2" (Motion to Dismiss) with the Atomic Safety and Licensing Board (Board) in this proceeding. Dukes Motion to Dismiss sets forth Dukes arguments in favor of dismissing BREDL/NIRS Contention 2 as moot. The staff of the Nuclear Regulatory Commission (Staff) hereby submits its answer in support of Dukes Motion to Dismiss.
BACKGROUND BREDL/NIRS Contention 2, as admitted, challenges the completeness of Dukes severe accident mitigation alternatives (SAMA) analysis in its license renewal application. Contention 2 cites the omission of any reference to NUREG/CR-6427, Assessment of the DCH [Direct Containment Heating] Issue for Plants with Ice Condenser Containments, (Sandia, April 2000).1 At the time the contention was initially admitted by the Board, see Duke Energy Corp. (McGuire 1
Hereafter, the Staff refers to NUREG/CR-6427 as the Sandia study.
Nuclear Station, Units 1 and 2, and Catawba Nuclear Station, Units 1 and 2), LBP-02-04, 55 NRC 49 (2002), Duke had not addressed the findings of the Sandia study in its application.
After the Board admitted BREDL/NIRS Contention 2, Duke submitted a supplemental SAMA analysis that incorporated analysis from the Sandia study.2 This information was used by the Staff in the preparation of its draft and final supplemental environmental impact statements (SEISs) for Catawba and McGuire, which show the range of risk reduction and estimated benefits achievable using, among other data, the Sandia study.3 Subsequently, as a result of disagreement among the parties and the Board regarding interpretation of the Commissions decision in CLI-02-17, Duke filed a motion with the Commission seeking clarification of the Commissions order. See Motion for Clarification of Memorandum and Order CLI-02-17 (Motion for Clarification). In response to Dukes motion and a Certified Question by the Board, the Commission issued CLI-02-28, wherein the Commission remanded the issue of mootness to the Board with guidance on how to address the issue. Duke subsequently filed its Motion to Dismiss, which is the subject of the instant Staff answer.
2 See Letter from M.S. Tuckman to NRC, Response to Requests for Additional Information in Support of the Staff Review of the Application to Renew the Facility Operating Licenses of McGuire Nuclear Station, Units 1 & 2 and Catawba Nuclear Station, Units 1 & 2" at 8 (January 31, 2002); Letter from M.S. Tuckman to NRC, Response to Requests for Additional Information in Support of the Staff Review of the Application to Renew the Facility Operating Licenses of McGuire Nuclear Station, Units 1 & 2 and Catawba Nuclear Station, Units 1 & 2" at 7 (February 1, 2002).
3 See NUREG-1437, Supplement 8, [Draft] Generic Environmental Impact Statement for License Renewal of Nuclear Plants Regarding McGuire Nuclear Station, Units 1 and 2, (May 2002) at §5.2; NUREG-1437, Supplement 9, [Draft] Generic Environmental Impact Statement for License Renewal of Nuclear Plants Regarding Catawba Nuclear Station, Units 1 and 2, (May 2002) at
§ 5.2, Table 5-7; NUREG-1437, Supplement 8, [Final] Generic Environmental Impact Statement for License Renewal of Nuclear Plants Regarding McGuire Nuclear Station, Units 1 and 2" (December 2002) at § 5.2; NUREG-1437, Supplement 9, [Final] Generic Environmental Impact Statement for License Renewal of Nuclear Plants Regarding Catawba Nuclear Station, Units 1 and 2" (December 2002) at § 5.2.
DISCUSSION In its Motion to Dismiss, Duke argues, as it has before, that Contention 2 should be dismissed because the claims contained therein have become moot. See Motion to Dismiss at 1.
Duke states that the basic claim underlying Contention 2 (that NUREG/CR-6427 was not addressed by Duke in its environmental report) is contradicted by the current record of this proceeding. See id. at 6-7. Duke asserts in its motion that the Board should dismiss Contention 2 because the contention merely alleged the omission of certain information, which has subsequently become part of the record. Thus, there is no controversy between the parties for the Board to resolve. See id. at 8-9 (citing Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2, and Catawba Nuclear Station, Units 1 and 2), CLI-02-28, slip op. at 14 (Dec. 18, 2002) for the proposition that once a contention of omission is satisfied it is appropriate to dismiss the contention as moot). The Staff agrees.
In the Staffs view, the Board should grant the Motion to Dismiss, particularly in light of the Commissions decision in CLI-02-28. In that decision, the Commission, while ruling on the motion filed by Duke seeking clarification of CLI-02-17 and on the certified question raised by the Board, ordered the Board to, among other things, determine whether the draft SEISs render [Contention 2] moot. See CLI-02-28, slip op. at 23. In order to assist the parties and resolve the certified question and the motion for clarification then before it, the Commission addressed its understanding of Contention 2 in CLI-02-28, leaving open only the issues it remanded to the Board for resolution. Therefore, it is important that the Board consider and follow the Commissions reasoning4 in ruling on Dukes motion.
4 In its reasoning the Commission makes very clear that it never intended to expand the scope of Contention 2 and that any interpretation otherwise is a misreading of its decision. See CLI-02-28, slip op. at 4-6.
In CLI-02-28, the Commission quite clearly found that Contention 2 is a contention of omission. See id. at 13. Moreover, the Commission made clear that the issue raised by Contention 2 was solely Dukes failure to discuss the Sandia study at all. Id. The Commission went on to state that [w]here a contention alleges the omission of particular information ... and the information is later supplied by the applicant or considered by the staff in a draft EIS, the contention is moot. Id. at 14 (citing Private Fuel Storage (Independent Spent Fuel Storage Installation),
LBP-02-2, 55 NRC 20, 30 (2002)). The Commission, however, did not rule on whether, given the current record, the Contention is moot. Nevertheless, the Commission did state that [i]f, as appears to be the case, the draft SEISs now acknowledge the relevant findings, then the original contention is moot. See id. at 7. Therefore, as the Commission noted, what is required of the Board is merely a formal finding that ... the NRC staff [in the SEISs] ... has addressed the Sandia study. Id. at 16 (quoting Staffs Response to Applicants Motion for Clarification of Memorandum and Order CLI-02-17 (Aug. 12, 2002) at 8).
The Staff agrees with Duke that Contention 2 is now moot. The Staff has now issued both the draft and final supplemental environmental impact statements for the Catawba and McGuire Plants. The documents address the Sandia study and the data contained therein.5 5
See, e.g., NUREG-1437, Supplement 8, Generic Environmental Impact Statement for License Renewal of Nuclear Plants: Supplement 8, Regarding McGuire Nuclear Station, Units 1 and 2" (December 2002) at § 5.2; NUREG-1437, Supplement 9, Generic Environmental Impact Statement for License Renewal of Nuclear Plants: Supplement8, Regarding Catawba Nuclear Station, Units 1 and 2" (December 2002) at § 5.2; NUREG-1437, Supplement 8, [Draft] Generic Environmental Impact Statement for License Renewal of Nuclear Plants: Supplement 8, Regarding McGuire Nuclear Station, Units 1 and 2" (May 2002) at § 5.2.
Therefore, these documents, on their face, cure any deficiencies alleged by Contention 2. Thus, in light of the inclusion of this information in the Staffs documents, Contention 2 should be dismissed.
CONCLUSION For the reasons stated above, the Applicants Motion to Dismiss should be granted.
Respectfully submitted,
/RA/
Antonio Fernández, Esq.
Counsel for the NRC Staff Dated at Rockville, Maryland this 23rd day of January, 2003.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
)
DUKE ENERGY CORPORATION ) Docket Nos. 50-369-LR
) 50-370-LR (McGuire Nuclear Station, ) 50-413-LR Units 1 and 2, and ) 50-414-LR Catawba Nuclear Station )
Units 1 and 2) )
CERTIFICATE OF SERVICE I hereby certify that copies of NRC STAFFS ANSWER TO APPLICANTS MOTION TO DISMISS CONSOLIDATED CONTENTION 2 in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class; or as indicated by an asterisk (*), by deposit in the Nuclear Regulatory Commissions internal mail system; as indicated by two asterisks (**), by electronic mail, this 23rd day of January, 2003.
Ann Marshall Young, Chair**
- Paul Gunter**
Administrative Judge Nuclear Information and Resource Service Atomic Safety and Licensing Board 1424 16th St. N.W.
U.S. Nuclear Regulatory Commission Suite 404 Mail Stop: T-3F23 Washington, D.C. 20026 Washington, D.C. 20555 (E-mail: pgunter@nirs.org)
(E-mail: AMY@nrc.gov)
Lester S. Rubenstein**
- Charles N. Kelber**
- Administrative Judge Administrative Judge Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Mail Stop: T-3F23 Mail Stop: T-3F23 Washington, D.C. 20555 Washington, D.C. 20555 (E-mail: Lesrrr@msn.com)
(E-mail: CNK@nrc.gov)
Office of the Secretary**
- Office of Commission Appellate ATTN: Docketing and Service Adjudication**
- U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Mail Stop: O-16C1 Mail Stop: O-16C1 Washington, D.C. 20555 Washington, D.C. 20555 (E-mail: HEARINGDOCKET@nrc.gov)
Diane Curran, Esq.** Atomic Safety and Licensing Board Panel*
Harmon, Curran, Spielberg & Eisenberg U.S. Nuclear Regulatory Commission 1726 M Street, N.W., Suite 600 Mail Stop: T-3F23 Washington, DC 20036 Washington, D.C. 20555 (E-mail: dcurran@harmoncurran.com)
Donald J. Moniak**
Mary Olson** P.O. Box 3487 Southeast Director of NIRS Blue Ridge Environmental Defense League P.O. Box 7586 Aiken, S.C. 29802 Asheville, NC 20882 (E-mail: donmoniak@earthlink.net)
(E-mail: nirs.se@mindspring.com)
David A. Repka, Esq.**
Mr. Lou Zeller Anne W. Cottingham, Esq.**
Ms. Janet Zeller** Winston & Strawn P.O. Box 88 1400 L Street, N.W.
Blue Ridge Environmental Defense League Washington, D.C. 20005-3502 Glendale Springs, N.C. 28629 (E-mail: drepka@winston.com (E-mail: BREDL@skybest.com) acotting@winston.com)
Lisa F. Vaughn, Esq.**
Legal Dept.
Duke Energy Corporation 426 S. Church Street (EC11X)
Charlotte, NC 28201-1006 (E-mail: lfVaughn@duke-energy.com)
/RA/
Antonio Fernández, Esq.
Counsel for NRC Staff