ML040470003
| ML040470003 | |
| Person / Time | |
|---|---|
| Site: | Catawba  |
| Issue date: | 02/04/2004 |
| From: | Anthony Baratta, Austin Young Atomic Safety and Licensing Board Panel |
| To: | |
| Byrdsong A T | |
| References | |
| 50-413-OLA, 50-414-OLA, ASLBP 03-815-03-OLA, RAS 7305 | |
| Download: ML040470003 (9) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION RAS 7305 DOCKETED 02/04/04 ATOMIC SAFETY AND LICENSING BOARD PANEL SERVED 02/04/04 Before Administrative Judges:
Ann Marshall Young, Chair Anthony J. Baratta Thomas S. Elleman In the Matter of Docket Nos. 50-413-OLA, 50-414-OLA DUKE ENERGY CORPORATION ASLBP No. 03-815-03-OLA (Catawba Nuclear Station, Units 1 and 2) February 4, 2004 MEMORANDUM and ORDER (Ruling on BREDL Motion Regarding Staff February 6, 2004, Meeting with Duke Energy and Request for Need to Know Determination)
A quorum of the Licensing Board in this proceeding1 today rules on Blue Ridge Environmental Defense Leagues [BREDLs] February 3, 2004, Emergency Motion for Access to NRC Staff Meeting on February 6, 2004, [hereinafter Motion], and BREDLs request, made in a telephone conference held today, for a need to know determination regarding the meeting.
For the reasons set forth herein, including in part reference to the analysis set forth in our recent, sealed January 29, 2004, Memorandum and Order regarding certain Safeguards Information, we (1) find that BREDL has a need to know with regard to the February 6 meeting and information to be discussed therein such that it should be permitted to attend, but (2) alternatively, given that our January 29 ruling has been appealed and is currently pending before the Commission, provide that the Staff may have the meeting in question transcribed, in 1
This proceeding involves Duke Energy Corporations (Dukes) February 2003 application to amend the operating license for its Catawba Nuclear Station to allow the use of four mixed oxide (MOX) lead test assemblies at the station; Petitioners Nuclear Information and Resource Service (NIRS) and Blue Ridge Environmental Defense League (BREDL) in August 2003 filed petitions to intervene and requests for hearing in response to a July 2003 Federal Register notice concerning this application. See 68 Fed. Reg. 44,107 (July 25, 2003). Administrative Judge Elleman was not available to hear argument on or decide BREDLs motion and request at issue in this Memorandum and Order. Consequently, Judges Young and Baratta rule as a quorum on the matters.
lieu of BREDL attending the meeting, in order that the status quo may be preserved pending a final Commission ruling, or rulings, on related Safeguards Information, and pending any guidance the Commission may have to offer in deciding these security-related matters.
The meeting in question is scheduled to be held from 1:00 to 4:00 p.m. on Friday, February 6, to discuss Dukes September 15, 2003, Security Submittal on the Physical Security Plan for Catawba, and, more specifically, to discuss certain Staff requests for additional information (RAIs) on the submittal and on Dukes request for exemptions from certain regulatory requirements to support the use of mixed oxide [MOX] fuel. January 30, 2004, Memorandum from Robert E. Martin to John A. Nakoski,
Subject:
Forthcoming Closed Meeting with Duke Energy Corporation; id., attached Agenda. In a telephone conference held this morning to hear argument on BREDLs motion, it was stated that, normally, such meetings with applicants, relating to RAIs, are open to the public under the Commissions Policy Statement Enhancing Public Participation in NRC Meetings, 67 Fed. Reg. 36, 920 (May 28, 2002)
[hereinafter 5/28/02 Policy Statement]. The reason that this meeting has been closed to the public is that certain Safeguards Information will be discussed in the meeting. Such meetings involving Safeguards Information appear to be rare; Staff counsel was not aware of any other such meetings to discuss RAIs that have been closed to the public because of Safeguards Information. Transcript of Feb. 4, 2004, Telephone Conference [hereinafter Tr. 2/4/04].2 In support of its Motion, which the Staff opposes, BREDL cites a provision of a December 15, 2003, Protective Order agreed to by all participants and issued by the Licensing Board, stating that BREDLs counsel and representatives who have executed a Nondisclosure 2
Because of the time constraints associated with the February 6 meeting, BREDLs motion, and this Memorandum and Order, the Board is issuing this Memorandum and Order without waiting for the production of a transcript of todays telephone conference, and therefore is able to make only general references to the transcript, without exact quotes or page numbers; all references to the transcript, however, incorporate the essence of what was stated during the telephone conference of February 4, 2004.
Affidavit shall be permitted access to Protected Information, under certain conditions.
Protected Information is defined in the Order to include:
the September 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.
Motion at 2; Memorandum and Order (Protective Order Governing Duke Energy Corporations September 15, 2003 Security Plan Submittal) (Dec. 15, 2003), at 2 [hereinafter Protective Order].
The Protective Order also provides that [a]n individual must have a need to know the Protected Information that he or she may be shown; that need to know means a determination by the holder of the Protected Information that the proposed recipients access to the Protected Information is necessary in the performance of official, contractual, or employment duties with respect to the litigation in this proceeding; but that, [i]f a dispute arises regarding any need to know determination under this Protective Order, the determination of need to know will be made by the Licensing Board. Id. at 3-4.
Prior to bringing the issues herein to the Licensing Boards attention, BREDL requested confirmation from Staff counsel that under the Protective Order BREDLs counsel and expert, Dr. Edwin Lyman, would be permitted to attend the February 6 meeting. Motion at 2-3. Upon not receiving a response to its February 2 request, BREDL filed its motion with the Board. In addition to citing the Protective Order, BREDL cites the Commissions 5/28/02 Policy Statement in support of its motion. Id. at 3. BREDL seeks in its motion either to attend the February 6 meeting, or, in the alternative, that the meeting be transcribed and that the transcript be provided to BREDL. Id. at 4. During the telephone conference, both BREDL and Duke counsel stated that providing for a transcript of the February 6 meeting would be acceptable and would
not constitute any harm to them. Tr. 2/4/04. The Staff argued against providing for the taking of a transcript, based upon unspecified harm and upon its contention that the Board has no authority to order such a transcript. Tr. 2/4/04.
Both Duke and the Staff have asserted that BREDL has no need to know with regard to the February 6 meeting, although they appeared to concede at various points in todays conference that there might possibly be such a need with regard to subsequent information produced as a result of the meeting, either in the form of a document memorializing the actions taken at the meeting and/or in the form of Dukes responses to the Staffs RAIs. Tr. 2/4/04.
Duke counsel also cited 10 C.F.R. § 2.102(a), wherein it is stated that [d]uring review of an application by the staff, an applicant may be required to supply additional information, and that
[t]he staff may request any one party to the proceeding to confer with the staff informally. In addition, Duke cited in support of its argument the 1975 and 1993 cases of Northeast Nuclear Energy Co. (Montague Nuclear Power Station, Units 1 & 2), LBP-75-19, 1 NRC 436 (1975); and Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station), CLI-93-5, 37 NRC 168, 170 (1993).
In the 1993 Rancho Seco case, the Commission did state that there is no general duty to inform all parties of the occurrence of substance of every [communication between Staff and an applicant]. Id., citing Montague, 1 NRC at 437. In the 1975 case, the licensing board cited 10 C.F.R. § 2.102(a) for the Staffs authority, by specific regulation . . . to confer privately with any party. Id.3 Notwithstanding these provisions relating to private communications with one 3
We note that in Montague the licensing board made reference to a lack of any supervisory authority over that part of the process that has been entrusted to the Staff. Montague, 1 NRC at 437.
The Commission in Rancho Seco does not refer to this language or to the issue of licensing board authority either generally or with regard to access to any information. Recognizing that the Staff has made such an argument, we note that we do not in making our ruling herein view ourselves as in any way exercising any authority over the Staff in the performance of its reviewing or other functions, but rather as simply ruling on BREDLs motion, which in essence is a request for a need to know determination, which was made more explicitly in the telephone conference this morning. We make our
or another party in a proceeding, however, under more recent Commission policy on open meetings, with certain exceptions all meetings conducted by the NRC Staff as part of its review of a particular domestic license or permit application, including applications for amendments to a license or permit, are to be open to attendance by all parties or petitioners in the case. Staff Meetings Open to the Public: Final Policy Statement, 65 Fed. Reg. 56,964 (Sept. 20, 2000)
[hereinafter 9/20/00 Policy Statement]; 5/28/02 Policy Statement. As stated in the 2000 policy statement, that policy continues NRCs longstanding practice of providing the public with the fullest information practicable on its activities and of conducting business in an open manner, while balancing the need for the NRC staff to exercise its regulatory and safety responsibilities without undue administrative burden. 9/20/00 Policy Statement at 56,965.
The 2002 Policy Statement provides that [m]eetings between the NRC staff and external stakeholders will be designated as public meetings unless the NRC staff determines that the subject matter or information to be discussed meets one or more of [certain] criteria, including that it [c]ontains safeguards or other protected information. 5/28/02 Policy Statement at 36,921. The only exception cited by the Staff in the telephone conference is this exception. Tr. 2/4/04.
In our sealed Memorandum and Order of January 29, 2004, currently on appeal before the Commission, we discuss various reasons for finding a need to know on the part of BREDL with regard to certain documents that were related to or dealt with Dukes Security Submittal in various ways. These reasons included the relatedness of the documents in question to the submittal. We find that the same essential analysis set forth in the sealed order dealing primarily with the relatedness of the information sought by BREDL to Dukes submittal, without ruling based on the grounds stated in the text of this Memorandum and Order, based on the Protective Order provision on resolving disputes on need to know determinations, and in order to maintain the status quo pending further resolution of various security-related issues by the Commission.
which, we found, a meaningful evaluation of the submittal could not be made applies to BREDLs current motion. The information to be discussed includes, according to the Staff, additional measures that Duke may take over and above those described in the submittal. Tr.
Taking into consideration, as we did in our January 29 Memorandum and Order, the strong and appropriate security concerns relating to Safeguards Information that may relate to and deal with Dukes Security Submittal, particularly in this post-9/11 time, and balancing these with the particular needs of BREDL regarding the information to be discussed in the February 6 meeting as it deals with and relates to Dukes submittal, the Board finds a need to know as requested by BREDL counsel today. Again, we find such a need on the part of only the following individuals associated with BREDL: BREDLs counsel, Ms. Diane Curran, and BREDLs expert, Dr. Edwin Lyman, both of whom have sought and received L level security clearances after undergoing appropriate investigation, which allow access to Safeguards information such as the material in question, assuming the requisite need to know. (The material in question shall not be disclosed in any way to any support staff or other persons.)
Alternatively, given that our January 29 ruling has been appealed and is currently pending before the Commission, the Staff may have the February 6 meeting transcribed, in lieu of BREDL attending the meeting, in order that the status quo may be preserved pending a final Commission ruling, or rulings, on related Safeguards Information, and any guidance the Commission may have to offer in deciding these security-related matters.
Should the second alternative be chosen, any participant may request a further ruling from the Licensing Board on access to the transcript of the February 6 meeting, after the Commission rules on the appeal of our January 29 Memorandum and Order that is currently before it, and/or on any appeal of this Memorandum and Order.
It is so ORDERED.
THE ATOMIC SAFETY AND LICENSING BOARD
/RA/
Ann Marshall Young, Chair ADMINISTRATIVE JUDGE
/RA/
Anthony J. Baratta ADMINISTRATIVE JUDGE Rockville, Maryland 4
February 4, 2004 4
Copies of this Order were sent this date by Internet e-mail or facsimile transmission, if available, to all participants or counsel for participants.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )
)
DUKE ENERGY CORPORATION ) Docket Nos. 50-413-OLA
) 50-414-OLA Catawba Nuclear Station, Units 1 and 2) )
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing LB MEMORANDUM AND ORDER (RULING ON BREDL MOTION REGARDING STAFF FEBRUARY 6, 2004, MEETING WITH DUKE ENERGY AND REQUEST FOR NEED TO KNOW DETERMINATION) 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 Anthony J. Baratta Thomas S. Elleman Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 5207 Creedmoor Rd., #101 U.S. Nuclear Regulatory Commission Raleigh, NC 27612 Washington, DC 20555-0001 Susan L. Uttal, Esq. Michael S. Tuckman, Executive Vice President Antonio Fernández, Esq. Nuclear Generation Kathleen A. Kannler, Esq. Duke Energy Corporation Office of the General Counsel 526 South Church Street Mail Stop - O-15 D21 P.O. Box 1006 U.S. Nuclear Regulatory Commission Charlotte, NC 28201-1006 Washington, DC 20555-0001 Mary Olson Diane Curran, Esq.
Director of the Southeast Office Harmon, Curran, Spielberg Nuclear Information and Resource Service & Eisenberg, L.L.P.
729 Haywood Road, 1-A 1726 M Street, NW, Suite 600 P.O. Box 7586 Washington, DC 20036 Asheville, NC 28802
2 Docket Nos. 50-413-OLA and 50-414-OLA LB MEMORANDUM AND ORDER (RULING ON BREDL MOTION REGARDING STAFF FEBRUARY 6, 2004, MEETING WITH DUKE ENERGY AND REQUEST FOR NEED TO KNOW DETERMINATION)
David A. Repka, Esq. Lisa F. Vaughn, Esq.
Anne W. Cottingham, Esq. Duke Energy Corporation Mark J. Wetterhahn, Esq. Mail Code - PB05E Winston & Strawn LLP 422 South Church Street 1400 L Street, NW P.O. Box 1244 Washington, DC 20005 Charlotte, NC 28201-1244 Paul Gunter Nuclear Information and Resource Service 1424 16th St., NW, Suite 404 Washington, DC 20036
[Original signed by Evangeline S. Ngbea]
Office of the Secretary of the Commission Dated at Rockville, Maryland, this 4th day of February 2004