ML040420253
| ML040420253 | |
| Person / Time | |
|---|---|
| Site: | Catawba  |
| Issue date: | 02/03/2004 |
| From: | Curran D Blue Ridge Environmental Defense League, Harmon, Curran, Harmon, Curran, Spielberg & Eisenberg, LLP |
| To: | Atomic Safety and Licensing Board Panel |
| Byrdsong A T | |
| References | |
| 50-413-OLA, 50-414-OLA, ASLBP 03-815-03-OLA, RAS 7338 | |
| Download: ML040420253 (14) | |
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t' February 3, 2004 UNITED STATES C F AMERICA NUCLEAR REGULATOr RY COMMISSION DOCKETED BEFORE THE ATOMIC SAFETY AND LICENSING BOARD USNRC February 10, 2004 (2:18PM)
In the Matter of 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 EMERGENCY MOTION FOR ACCESS TO NRC STAFF MEETING ON FEBRUARY 6,2004 Pursuant to 10 C.F.R. §§ 2.718 and the Atomic Safety and Licensing Board's
("ASLB's") Protective Order of December 15, 2003, Blue Ridge Environmental Defense League ("BREDL") hereby requests the ASLB to order the Nuclear Regulatory Commission ("NRC" or "Commission") Staff to allow BREDL's representatives, Diane Curran and Dr. Edwin S. Lyman, to attend a February 6, 2004, NRC staff meeting regarding proposed revisions to Duke Energy Corporation's ("Duke's") security plan for use of plutonium lead test assemblies ("LTAs") at the Catawba nuclear power plant.
STATEMENT OF FACTS On September 15, 2003, in connection with its application to use plutonium lead test assemblies at the Catawba nuclear power plant, Duke submitted revisions to its security plan and a request for an exemption from certain Category I security requirements. The documents are collectively referred to as Duke's "Security Plan Submittal."
On December 15, 2003, the ASLB approved a Protective Order granting access to "Protected Information" generated in the Catawba-LTA case to BREDL's attorney, secV Diane Curran; and BREDL's expert on security matters, Dr. Edwin S. Lyman.
Memorandum and Order (Protective Order Governing Duke Energy Corporation's September 15, 2003 Security Plan Submittal).
At page 2, the Protective Order states that BREDL's counsel and representatives who have executed a Nondisclosure Affidavit shall be permitted access to "Protected Information," under certain conditions. "Protected Information" is defined to include:
the Septernber 15,2003 Security Plan Submittal or any supplements or amendments thereto, including Requests for Additional Information ("RAIs") or responses to RAIs relating to that submittal; and (2) any information obtained, developed, or created by virtue of these proceedings, in any form, that is not otherwise a matter of public record and that deals with or describes details of the Security Plan Submittal.
Id.
On January 22, 2004, during an informal conversation with NRC Staff members at an NRC meeting regarding Mixed Oxide ("MOX") fuel, Dr. Lyman learned that the NRC was planning to hold a meeting regarding Duke's Security Plan Submittal. On January 30, 2004, the NRC Staff issued a written notice of the February 6 meeting.
Memorandum from Robert E. Martin, NRC, to John A. Nakoski, NRC, re: Forthcoming Closed Meeting With Duke Energy Corporation (January 30, 2004). A copy of the notice is attached as Exhibit 2. Although the notice was posted on ADAMS, the service list shows that it was not sent to counsel for BREDL.
On February 2, 2004, BREDL's attorney, Diane Curran, wrote to Antonio Fernandez and Susan L. Uttal, counsel for the NRC Staff, to request confirmation that under the terms of the Protective Order, she and Dr. Lyman would be permitted to attend the February 6 meeting. A copy of the letter is attached as Exhibit 1. Ms. Curran also made the same request to Mr. Fernandez in a telephone conversation on the morning of
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February 2. Although Ms. Curran requested the NRC to respond to her request by noon on February 3, she did not receive a response.
ARGUMENT Pursuant to 10 C.F.R. § 2.718(m), the presiding officer has the authority and the responsibility to take measures that are necessary to "conduct a fair and impartial hearing according to law, to take appropriate action to avoid delay, and to maintain order." The ASLB has also issued a Protective Order giving Ms. Curran and Dr. Lyman access to Protected Information, i.e.:
any information obtained, developed, or created by virtue of these proceedings, in any form, that is not otherwise a matter of public record and that deals with or describes details of the Security Plan Submitttal.
Protective Order at 2. Clearly, the discussion of Duke's Security Plan Submittal that is to be held on February 6 falls under the ASLB's definition of Protected Information, to which BREDL's counsel and expert are entitled to access. First, the meeting is being conducted by virtue of the license amendment proceeding for testing of plutonium fuel at Catawba, for the purpose of developing information related to the proceeding. Second, the discussion obviously will describe details of the Security Plan Submittal. Finally, the meeting will not otherwise be a matter of public record, because it will be closed. By excluding Ms. Curran and Dr. Lyman from the February 6 meeting, the Staff will undermine the Board's Protective Order and the fairness of this proceeding.
Moreover, the Staff's apparent decision to exclude Ms. Curran and Dr. Lyman from the February 6 meeting violates the Commission's general policy of permitting the public to attend meetings between the NRC Staff and licensees. Policy Statement, EnhancingPublicParticipationin NRC Meetings, 67 Fed. Reg. 36,920 (May 28, 2002).
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Under this policy, the only possible obstacle to attendance by Ms. Curran and Dr. Lyman at the February 6 meeting is that safeguards information will be discussed. Id. at 36,921 (noting that meetings between the NRC staff and "external stakeholders" are public unless they fall under specific exclusions, such as meetings containing safeguards information.) Because Ms. Curran and Dr. Lyman have the necessary permission to review safeguards information related to Duke's Security Plan Submittal, there is no reason to exclude them from the February 6 meeting.
CONCLUSION For the foregoing reasons, BREDL seeks an emergency order from the ASLB, requiring the Staff to allow Ms. Curran and Dr. Lyman to attend the February 6 meeting.
In the alternative, BREDL requests that the ASLB order that the meeting must be transcribed, and the transcript provided to BREDL.
Counsel for BREDL attempted to contact Mr. Fernandez and Ms. Uttal by telephone to ask whether they would oppose this motion, but was unable to reach either one of them. Counsel for Duke stated that Duke would respond to BREDL's motion in writing.
l The NRC Staff has attempted to prevent Ms. Curran and Dr. Lyman from gaining access to the NRC's confidential security standards and guidance applicable to the Catawba nuclear power plant and Category I facilities, based on the assertion that they have no "need to know" the information. NRC Staff's Motion for Interlocutory Review of the Licensing Board's January 29, 2004 Order Finding a Need-to-Know and Ordering NRC Staff to Provide Petitioner with Access to NRC Documents Containing Safeguards Information (February 2, 2004). In its motion, the Staff stated that it would review Duke's Security Plan Submittal based only on publicly available standards. Id at 4.
Thus, the Staff would have no grounds for contending that the meeting will involve a discussion of the confidential standards for which the Staff disputes Ms. Curran's and Dr.
Lyman's "need to know."
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Respectfully submitted, Diane Curran 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 February 3, 2004
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Exhibit 1
,.HARMON, CURRAN, SPIELBER EISENBERG, LLP 1726 M Street, NW, Suite 600 Washington, DC 20036 202) 328-3500 (202) 328-69 IBfa, February 2, 2004 Antonio Fernandez, Esq.
Susan L. Uttal, Esq.
Office of General Counsel U.S. Nuclear Regulatory Commission Washington, D.C. 20555
SUBJECT:
NRC StaffMeeting on February6, 2004, regardingSecurity Issues
Dear Mr. Fernandez and Ms. Uttal,
I recently learned that the NRC Staff has scheduled a meeting for February 6, 2004, regarding security issues relating to Duke Energy Corporation's license amendment application to test plutonium fuel at the Catawba nuclear power plant. Pursuant to the Protective Order of December 15, 2003, the contents of the meeting constitute "Protected Infornation" to which the Protective Order provides access by me and Dr. Edwin Lyman, Blue Ridge Environmental Defense League's expert on security issues. See Memorandum and Order (Protective Order Governing Duke Energy Corporation's September 15, 2003 Security Plan Submittal) at 2, which defines "Protected Information" as, inter alia, "any information obtained, developed, or created by virtue of these proceedings, in any form, that is not otherwise a matter of public record and that deals with or describes details of the Security Plan Submitttal."
Please provide written confirmation, by noon tomorrow, that Dr. Lyman and I will be allowed to attend the February 6 meeting.
Diane Curran cc: Service list
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Exhibit 2 January 30, 2004 MEMORANDUM TO: John A. Nakoski, Chief, Section 1 Project Directorate II Division of Licensing Project Management Office of Nuclear Reactor Regulation FROM: Robert E. Martin, Senior Project Manager, Section 1 Project Directorate II /RA]
Division of Licensing Project Management Office of Nuclear Reactor Regulation
SUBJECT:
FORTHCOMING CLOSED MEETING WITH DUKE ENERGY CORPORATION DATE & TIME: Friday, February 6, 2004 1:00 p.m. - 4:00 p.m.
LOCATION: U.S. Nuclear Regulatory Commission Two White Flint North 11545 Rockville Pike, Room T 8 E-8 Rockville, Maryland PURPOSE: To discuss the licensee's submittal of September 15, 2003, on the Physical Security Plan for Catawba.
This meeting will be closed to the public since safeguards information will be discussed in the meeting.
PARTICIPANTS: Participants from the NRC include members of the Office of Nuclear Security and Incident Response (NSIR) and the Office of Nuclear Reactor Regulation (NRR)
NRC NRC Duke Energy Corn.
J. Shea, NSIR A. Tardiff, NSIR S. Nesbit V. Ordaz, NSIR S. Cross, NSIR M. Cash A. Garrett, NSIR R. Martin, NRR S. Uttal, OGC A Fernandez, et al. OGC Docket Nos. 50-413 and 50-414
Attachment:
Agenda cc Watt: See next page MEETING CONTACTS: Robert E. Martin, NRR Sean Peters 301-415-1493 301-415-1842 rem(iDnrc.aov septa~nrc.gov
- Commission's Policy Statement on Enhancing Public Participation in NRC Meetings,"
(67 FR 36920), May-28, 2002 _ - . ,-
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January 30, 2004 MEMORANDUM TO: John A. Nakoski, Chief, Section 1 Project Directorate II Division of Licensing Project Management Office of Nuclear Reactor Regulation FROM: Robert E. Martin, Senior Project Manager, Section 1 Project Directorate II /RA/
Division of Licensing Project Management Office of Nuclear Reactor Regulation ., r
SUBJECT:
FORTHCOMING CLOSED MEETING WITH DUKE ENERGY CORPORATION DATE & TIME: Friday, February 6, 2004 1:00 p.m. - 4:00 p.m.
LOCATION: U.S. Nuclear Regulatory Commission Two White Flint North 11545 Rockville Pike, Room T 8 E-8 Rockville, Maryland PURPOSE: To discuss the licensee's submittal of September 15, 2003, on the Physical Security Plan for Catawba.
This meeting will be closed to the public since safeguards information will be discussed in the meeting.
PARTICIPANTS: Participants from the NRC include members of the Office of Nuclear Security and Incident Response (NSIR) and the Office of Nuclear Reactor Regulation (NRR)
NRC NRC Duke Energy Corp.
J. Shea, NSIR A; Tardiff, NSIR S. Nesbit V. Ordaz, NSIR S. Cross, NSIR M. Cash A. Garrett, NSIR R. Martin, NRR S. Uttal, OGC A. Fernandez, et al. OGC Docket Nos. 50-413 and 50-414
Attachment:
Agenda cc Watt: See next page MEETING CONTACTS: Robert E. Martin, NRR Sean Peters 301-415-1493 301-415-1842 rem(cDnrc.gov sep(nrc.qov
- Commission's Policy Statement on Enhancing Public Participation in NRC Meetings,"
(67 FR 36920), May 28, 2002 Distribution: See attached list ADAMS: ML040300955 OFFICE PDIl-1/PM / PDII-2ILA PDI-1/SC l NAME R. Martin:as lCHawes JNakoski DATE 01/29/04 01/29/04 01/30/04 OFFICIAL RECORD COPY
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DISTRIBUTION FOR THE FEBRUARY 6, 2004, MEETING WITH DUKE ENERGY CORPORATION Dated: January 30. 2004 Hard Cony:
PUBLIC PDII-1 RIF CHawes RMartin Receptionist OWFNITWFN E-Mail:
RidsNrrAdpt (BSheron)
RidsNrrDlpm (TMarsh/ELeeds)
RidsNrrDlpmLpdii (EHackett)
RidsNrrDlpmLpdiil (JNakoski)
KJohnson OPA JShea VOrdaz AGarrett ATardiff SCross SUttal AFernandez UShoop TAttard RLandry RHaag, RII SRosenberg, EDO KCIark, OPA RLandry DPersinko, NMSS RLee, RES PMNS I . -C ,
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AGENDA NRC MEETING WITH DUKE ENERGY CORPORATION FEBRUARY 6. 2004 1:00 p.m. Introduction 1:15 p.m. Discuss requests for additional information on the licensee's submittal of September 15, 2003, on its request for exemptions from certain regulatory requirements to support the use of mixed oxide fuel.
3:45 p.m. Conclusion 4:00 p.m. Adjourn I
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Catawba Nuclear Station cc:
Lee Keller North Carolina Electric Membership Regulatory Compliance Manager Corporation Duke Energy Corporation P. O. Box 27306 4800 Concord Road Raleigh, North Carolina 27611 York, South Carolina 29745 Senior Resident Inspector Ms. Lisa F. Vaughn U.S. Nuclear Regulatory Commission Duke Energy Corporation 4830 Concord Road Mail Code - PB05E York, South Carolina 29745 422 South Church Street P.O. Box 1244 Henry Porter, Assistant Director Charlotte, North Carolina 28201-1244 Division of Waste Management Bureau of Land and Waste Management Anne Cottingham, Esquire Department of Health and Environmental Winston and Strawn Control 1400 L Street, NW 2600 Bull Street Washington, DC 20005 Columbia, South Carolina 29201-1708 North Carolina Municipal Power Mr. R. L. Gill, Jr.
Agency Number 1 Manager - Nuclear Regulatory 1427 Meadowwood Boulevard Issues and Industry Affairs P. O. Box 29513 Duke Energy Corporation Raleigh, North Carolina 27626 526 South Church Street Mail Stop EC05P County Manager of York County Charlotte, North Carolina 28202 York County Courthouse York, South Carolina 29745 Saluda River Electric P. 0. Box 929 Piedmont Municipal Power Agency Laurens, South Carolina 29360 121 Village Drive Greer, South Carolina 29651 Mr. Peter R. Harden, IV VP-Customer Relations and Sales Ms. Karen E. Long Westinghouse Electric Company Assistant Attorney General 6000 Fairview Road North Carolina Department of Justice 12th Floor P. O. Box 629 Charlotte, North Carolina 28210 Raleigh, North Carolina 27602 Mary Olson NCEM REP Program Manager Director of the Southeast Office 4713 Mail Service Center Nuclear Information and Resource Service Raleigh, NC 27699-4713 729 Haywood Road, 1-A P. 0. Box 7586 Asheville, N. C. 28802
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. I Catawba Nuclear Station cc:
Mr. T. Richard Puryear Owners Group (NCEMC)
Duke Energy Corporation 4800 Concord Road York, South Carolina 29745 Richard M. Fry, Director Division of Radiation Protection North Carolina Department of Environment, Health, and Natural Resources 3825 Barrett Drive Raleigh, North Carolina 27609-7721 D. M. Jamil Vice President Catawba Nuclear Station Duke Energy Corporation 4800 Concord Road York, South Carolina 29745-9635 V
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CERTIFICATE OF SERVICE I hereby certify that on February 2, 2004, copies of the foregoing BLUE RIDGE ENVIRONMENTAL DEFENSE LEAGUE'S EMERGENCY MOTION FOR ACCESS TO NRC STAFF MEETING ON FEBRUARY 6,2004 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 Kathleen A. Kannler, 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.gov axf2@nrc.gov, Anthony J. Baratta KAK1@nrc.gov 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. segmindspring. com Office of Commission Appellate Adjudication U.S. Nuclear Regulatory Commission Lisa F. Vaughn, Esq.
Mail Stop: 0-16C1 Legal Dept. (PBO5E)
Washington, D.C. 20555 Duke Energy Corporation 526 South Church Street (EC IlX)
Thomas S. Elleman Charlotte, NC 28201-1006 Administrative Judge E-mail: lfVaughnduke-energy. co Atomic Safety and Licensing Board 4760 East Country Villa Drive Janet Marsh Zeller, Executive Director Tucson, AZ 85718 Blue Ridge Environmental Defense League E-mail: elleman@eos.ncsu.edu P.O. Box 88 Glendale Springs, NC 28629 Office of the Secretary (original and two copies) E-mail: BREDL@skybest. com ATTN: Docketing and Service U.S. Nuclear Regulatory Commission Mail Stop: 0-16C1 Washington, D.C. 20555 E-mail: HEARINGDOCKET@nrc. go
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2 David A. Repka, Esq.
Anne W. Cottingham, Esq.
Winston & Strawn, LLP 1400 L Street, N.W.
Washington, D.C. 20005-3502 E-mail: drepka~winston. com acotting~winston.com Diane Curran I,
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