ML032580485

Memorandum from G. Paul Bollwerk, III to the Commission Responding to CLI-03-11

ML032580485
Person / Time
Site:	Mcguire, Catawba, McGuire
Issue date:	09/09/2003
From:	Bollwerk G Atomic Safety and Licensing Board Panel
To:	Diaz N, Mcgaffigan E, Merrifield J NRC/OCM/EXM, NRC/OCM/JSM, NRC/OCM/NJD
Byrdsong A T
References
+adjud/rulemjr200506, 50-369-LR, 50-370-LR, 50-413-LR, 50-414-LR, ASLBP 02-794-01-LR, RAS 6802
Download: ML032580485 (4)

Text

KIfgO (a0L UNITED STATES NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD PANEL WASHINGTON, D.C. 20555.0001 DOCKETED USNRC September 9, 2003 September 12, 2003 (10:17AM)

OFFICE OF SECRETARY RULEMAKINGS AND MEMORANDUM TO: Chairman Diaz ADJUDICATIONS STAFF Commissioner McGaffigan Commissioner Merrifield SERVED September 12, 2003 FROM: G. Paul Boliwerk, III b -(Ž>,UJ. Docket No. 50-369137014131414R Chief Administrative Judge

SUBJECT:

RESPONSE TO SEPTEMBER 8, 2003 COMMISSION MEMORANDUM AND ORDER (CLI-03-1 1)

In a September 8, 2003 memorandum and order (CLI-03-1 1), the Commission has requested an explanation regarding the timing of the resolution of the contested Issues in the Duke Energy Comoration proceeding, specifically a SAMA (or severe accident mitigation alternative) contention that was the subject of a Commission remand in mid-December 2002 (CLi-02-28) and a mId-April 2003 Intervenor request to reinstate a previously-dismissed contention on the environmental impacts of mixed oxide (MOX) fuel. In its September 8 directive, the Commission requested that within three business days it be provided with an explanation for the delay in resolving these matters and an explanation as to the measures the Board will take to restore the proceeding to the original schedule reflected Inthe Commission's Initial referral order (CLI-1l -20).

The Board Chairman for this proceeding currently is out of the office, but will return shortly and can convene the Board to provide the Commission with an explanation regarding future scheduling. As to the reasons for the delay, because they Involve matters of Licensing Board Panel administration for which I am responsible, I feel ItIs appropriate to apprise the Commission directly regarding the somewhat unusual circumstances surrounding this proceeding that have played a significant role In the recent delay about which the Commission has expressed a concern.

By way of background, I would note that Licensing Boards such as the one that Is conducting this proceeding generally consist of three members, a legal administrative Judge, who is also the Board Chairman, and two technical administrative judges. It Is not overstated to say that the history of the Licensing Board Panel demonstrates that Inthe vast majority of its cases, licensing board decisions are unanimous. Given, however, that reasonable individuals can and do differ, this is not always the case. And Insuch Instances, to the degree it is necessary, the Ucensing Board Panel endeavors to provide the technical member or members of a Board who are Indisagreement with the legal member access to independent legal advice, generally from the Panel's Chief Counsel.

In this proceeding, despite the best efforts of all the Board members over the past several months to find a common ground on the matters in controversy, one or more of the technical members Is not in agreement with the legal member. When, at the end of June 2003, the Board's last attempt at having the parties reach a settlement was not successful, a request was SmC.4 S&C -Oio SECI-ca

made for a legal advisor. Unfortunately, the Panel was then In the process, albeit the final stages, of hiring a new Chief Counsel to replace the prior holder of that position who retired in January 2003. Because we did not anticipate that the new Chief Counsel would be with the Panel until late summer (and indeed, he just Joined the Panel last week), an attempt was made to find a substitute legal advisor. Initially, a part-time legal judge was recruited to provide this help. Unfortunately, In mid-July he decided that other commitments made It impossible for him to continue to serve In that role. At that juncture, constraints for other part-time legal members made It apparent the advisor role would have to be filled by one of the Panel's full-time legal members. The member whose schedule made him available for this duty began working on the matter In late July; however, because of a pre-existing commitment out of the office In early August and an subsequent unexpected illness that kept him out of the office for an additional period, he was not able to resume his efforts until late August. Since that time, he has been serving Inthe role of legal advisor and has been of material aid In providing assistance that should allow for issuance of a Board decision or decisions In this proceeding In the near term.

It Is unfortunate that this somewhat unusual confluence of administrative complications, in conjunction with the Board's natural reluctance to reveal details regarding the status of its deliberative process, has caused this matter to linger unexplained to the extent that the Commission found it necessary to Issue Its September 8 directive. It does, however, provide a valuable lesson for the Panel and licensing boards/presiding officers about the need to communicate the causes of delay as fully as possible within the confidentiality strictures that apply to the Judicial decisionmaking process.

I will leave It to the Commission to determine whether this memorandum should be placed on the public record of the Duke Energy CoMoration proceeding.

cc: J. Cordes, OGC/OCAA

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )

)

DUKE ENERGY CORPORATION ) Docket Nos. 50-3691370/4131414-LR I

(McGuire Nuclear Station, Units 1 and 2; )

Catawba Nuclear Station, Units 1 and 2) )

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing MEMORANDUM FROM G. PAUL BOLLWERK, III TO THE COMMISSION RESPONDING TO CLI-03-11 have been served upon the following persons by deposit in the U.S. mail, first class, or through NRC internal distribution.

Office of Commission Appellate Administrative Judge Adjudication Ann Marshall Young, Chair U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Washington, DC 20555-0001 Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Administrative Judge Administrative Judge, ASLBP Charles N. Kelber Lester S. Rubenstein Atomic Safety and Licensing Board Panel 4760 East Country Villa Drive Mail Stop - T-3 F23 Tucson, AZ 85718 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Susan L. Uttal, Esq. Michael S. Tuckman, Executive Vice President Antonio Femdndez, Esq. Nuclear Generation Office of the General Counsel Duke Energy Corporation Mail Stop 15 D21 526 South Church Street U.S. Nuclear Regulatory Commission P.O. Box 1006 Washington, DC 20555-0001 Charlotte, NC 28201 -1006 Mary Olson Janet Marsh Zeller, Executive Director Director of the Southeast Office Blue Ridge Environmental Defense League Nuclear Information and Resource Service P.O. Box 88 729 Haywood Road, 1-A Glendale Springs, NC 28629 P.O. Box 7586 Asheville, NC 28802

2 Docket Nos. 50-369137014131414-LR MEMORANDUM FROM G. PAUL BOLLWERK, III TO THE COMMISSION RESPONDING TO CLI-03-11 David A. Repka, Esq. Lisa F. Vaughn, Esq.

Anne W. Cottingham, Esq. Duke Energy Corporation Winston & Strawn LLP Mail Code - PB05E 1400 L Street, NW 422 South Church Street Washington, DC 20005 P.O. Box 1244 Charlotte, NC 28201-1244 Paul Gunter Diane Curran, Esq.

Nuclear Information and Resource Service Harmon, Curran, Spielberg 1424 1611 St., NW & Eisenberg, L.L.P.

Washington, DC 20026 1726 M Street, NW, Suite 600 Washington, DC 20036 Office of th Secreta of the C mission Dated at Rockville, Maryland, this 121 day of September 2003