ML040580440
| ML040580440 | |
| Person / Time | |
|---|---|
| Site: | Catawba  |
| Issue date: | 02/17/2004 |
| 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 7363 | |
| Download: ML040580440 (14) | |
Text
1This 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 Judges Young and Elleman rule in this Memorandum and Order, as a quorum of the Board, on those aspects of BREDLs motion that relate to classified information, because Administrative Judge Baratta, being relatively newly appointed to the Atomic Safety and Licensing Board Panel, had not, as of the issuance date of the Memorandum and Order, received his clearance for access to classified information.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION RAS 7363 DOCKETED 02/17/04 ATOMIC SAFETY AND LICENSING BOARD PANEL SERVED 02/17/04 Before Administrative Judges:
Ann Marshall Young, Chair Anthony J. Baratta Thomas S. Elleman In the Matter of DUKE ENERGY CORPORATION (Catawba Nuclear Station, Units 1 and 2)
Docket Nos. 50-413-OLA, 50-414-OLA ASLBP No. 03-815-03-OLA February 17, 2004 MEMORANDUM and ORDER (Ruling on BREDL Motion for Need to Know Determination Regarding Classified Documents A quorum of the Licensing Board in this proceeding1 rules in this Memorandum and Order on those aspects of Blue Ridge Environmental Defense Leagues [BREDLs] January 13, 2004, Request for Need to Know Determination that relate to classified information. See
[BREDLs] Request for Need to Know Determination and Motion for Extension of Deadline for Filing Security Contentions (Jan 13, 2004) [hereinafter BREDL Motion]. This follows the Licensing Boards rulings on those aspects of BREDLs motion relating to safeguards information, issued January 29, 2004, in a sealed Memorandum and Order, with an
2 accompanying public notice of the rulings. See Memorandum and Order (Ruling on BREDL Motion for Need to Know Determination and Extension of Deadline for Filing Security-Related Contentions) (Jan. 29, 2004) [hereinafter Sealed 1/29/04 Memorandum & Order]; Memorandum (Providing Notice of Granting BREDL Motion for Need to Know Determination and Extension of Deadline for Filing Security-Related Contentions) (Jan. 27, 2004) [hereinafter Public 1/29/04 Memorandum]. As we do not deal with any safeguards or classified information herein in a manner that would disclose or describe any details of such information, we are issuing this Memorandum and Order as a publicly available document. (Some documents we cite herein may, of course, be protected as safeguards or classified information, and therefore be unavailable to any but those with a determined need to know with regard to them.)
BREDL seeks our need to know determination on the following classified information at this time:
1.
Any classified design basis threat (DBT) for Category 1 facilities, which is asserted to be applicable to Catawba by virtue of the presence of formula quantities of plutonium during LTA testing, and any regulatory guidance associated with such DBT; and 2.
The classified orders for modification of license that NRC issued to Nuclear Fuel Services and Babcock and Wilcox on April 29, 2003.
BREDL Motion at 4-5. For the reasons stated herein, we deny BREDLs motion at this time, insofar as it relates to the listed information.
As with our previous rulings, in reaching our decision herein we have taken into consideration the strong and appropriate security concerns relating to any classified information, particularly in this post-9/11 time, and balanced these concerns with other appropriate factors, including the particular needs of BREDL at this time, regarding the information in question as it deals with and relates to Dukes security plan submittal. We address these needs issues below. With regard to the security concerns, it is undisputed that
3 these warrant stringent security precautions and procedures. We note that BREDL itself is motivated in its arguments by concern for the security of its members who live in the vicinity of the Catawba plant. We also note that these concerns are met in part in this proceeding by the fact that BREDLs counsel and expert, Ms. Diane Curran and Dr. Edwin Lyman, respectively, have sought and obtained L level security clearances, which allow access to classified information such as the material addressed in this Memorandum and Order, assuming the requisite need to know. We consider BREDLs need for the information in question in light of these factors, in light of all the security procedures and precautions that are being taken in this proceeding to ensure that no sensitive information is disseminated any further than necessary to address any appropriate legal considerations, and in light of the additional considerations discussed below.
We also, in reaching our rulings, are mindful of the pending appeals before the Commission and other actions relating to our prior January 29 ruling on safeguards information and BREDLs motion for extension, as well as to our February 4 Memorandum and Order relating to BREDLs need-to-know with regard to a meeting that was to have been held February 6 (but was subsequently postponed by the Staff pending resolution of its petition for review of our February 4 issuance). See NRC Staffs Motions for Temporary Stay to Preserve the Status Quo and for Stay Pending Interlocutory Review of the Licensing Boards January 29, 2004 Order Regarding Access to NRC Documents Containing Safeguards Information (Jan. 30, 2004); NRC Staffs Motion for Interlocutory Review of the Licensing Boards January 29, 2004 Order Finding a Need-to-Know and Ordering NRC Staff to Provide Petitioner with Access to Documents Containing Safeguards Information (Jan. 30, 2004; Feb. 2, 2004); Commission Order (Jan. 30, 2004); Letter from Susan Uttal (Feb. 5, 2004); NRC Staffs Petition for Review of the Licensing Boards February 4, 2004 Order Relating to BREDLs request to Attend a
4 2Although Judge Elleman was present in Rockville for the February 13, 2004, session, he lives in North Carolina and thus is obviously not always available to discuss freely issues relating to various levels of protected information; therefore the quorum of the Board ruling in this Memorandum and Order has made an extra effort to complete our deliberations on the ruling herein while Judge Elleman has been present at the NRC central headquarters office, in order to avoid the extra time and potential delays involved in working through other means to accomplish this after his return to North Carolina.
Closed Meeting (Feb. 11, 2004); Commission Order (Feb. 12, 2004). In view of these developments, we might be inclined to wait for the Commission to act before ruling herein.
Given, however, that resolution of such pending matters has not been reached to date; given, moreover, our responsibility to manage this proceeding and see that it goes forward and is ultimately resolved in the most expeditious manner possible; and given also certain unique logistical issues with which we must deal2; we deem it to be more efficient and appropriate overall to issue the ruling now. Certainly, if Commission rulings issued subsequent to this Memorandum and Order indicate that our ruling herein would ultimately be overturned, a timely appeal to the Commission of our decision today would presumably result in a relatively speedy ruling to such effect. On the other hand, if we wait, there could be delays that would seem to be in no ones interest.
As has previously been recognized, in addition to any other sources of authority or duty, we have a responsibility to make a ruling herein under the provision, found at § C.2 of the Protective Order proposed by the Staff and approved and issued by the Board pursuant to 10 C.F.R. § 73.21(c)(1(vi) on December 15, 2003, 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. Memorandum and Order (Protective Order Governing Duke Energy Corporations September 15, 2003 Security Plan Submittal) (Dec. 15, 2003) (hereinafter Protective Order), at 4; see id. at 1 n.1; 2. We take this responsibility seriously and endeavor to fulfill it herein, based on our consideration of the arguments of all participants, in the fairest and
5 3We make various citations herein to pages of the transcript from an earlier session that we find to be relevant; the arguments made during the February 13, 2004, session were similar, but, since the transcript of that session was not available to us as of the issuance today of in this Memorandum and Order we are unable to cite to specific pages of the transcript of the February 13 session.
most impartial manner possible in light of the significant security concerns and practical realities touched on above, and in accordance with appropriate legal requirements.
As we have previously noted and as indicated in the Protective Order, BREDL has already been provided with Dukes September 15, 2003, Security Plan Submittal, as well as with its Request for Exemption from Selected Regulations in 10 C.F.R. Parts 11 and 73.
Protective Order at 1-2. The exemption request is an attachment to the September security plan submittal; both it and the submittal are protected as safeguards information, and we will therefore not go into its contents or quote from it, as we have done in our earlier, sealed Memorandum and Order.
As for the information now at issue, we note that the Staff has contended that there are no such documents meeting the description, classified design basis threat for Category 1 facilities, as in item 1 above, see, e.g., Tr. 854,3 but has provided to this quorum of the Board the orders listed under item 2, above. Thus our current ruling in this Memorandum and Order as a practical matter relates to BREDLs need to know at this time with regard to Item 2, not having in hand any other classified documents; although we note that, in time, further clarification may be possible with regard to any other information that might at any point be determined to be encompassed within item 1.
BREDLs central argument is to the effect that, without access to the listed documents, it cannot make a meaningful evaluation of Dukes security plan submittal and request for exemption sufficient to prepare any security-related contentions in this proceeding. BREDL Motion at 1-2. Citing a December 18, 2002, order in a proceeding also involving the U.S
6 Department of Energy Surplus Plutonium Disposition Project, see Duke Submittal at 1, and more specifically involving the application for a license for a MOX fuel fabrication facility, see Duke Cogema Stone & Webster (Savannah River Mixed Oxide Fuel Fabrication Facility) (Dec.
18, 2002) (unpublished) (hereinafter Duke Cogema 12/18/02 Order), BREDL argues that preparation and prosecution of an intervenors case constitutes valid grounds for establishing a need to know. BREDL Motion at 5. BREDL has also cited the 1977 case of Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-410, 5 NRC 1398 (1977), in which certain guidelines to follow when granting intervenors access to security plans are stated. Tr. 858-59.
Because we do not herein grant access to the information now at issue, we do not find the Diablo Canyon case to be relevant at this time, although its guidelines may prove helpful in the future. With regard to the Duke Cogema case, we note that the licensing board in that proceeding dealt with the need for the intervenors counsel and expert in that case (who happen also to be involved in this proceeding) to obtain security clearances that would afford them access to certain DBT documents relating to that proceeding. The licensing board, in finding a need for security clearances for Ms. Diane Curran and Dr. Edwin Lyman, stated as follows:
Indeed, without access to the design basis threat documents already identified by the Staff, or other design basis threat information, it would appear unlikely that [the intervenor in the proceeding can even determine whether, in light of [the applicants] supplemental filings, it should amend its contentions.
Duke Cogema 12/18/02 Order at 3.
The Staff urges that Duke Cogema is distinguishable in that contentions had already been admitted and the intervenors established as parties in that proceeding at the time of the above ruling. Given the December 15, 2003, Protective Order issued in this proceeding (upon its proposal by the Staff); and given the indications on the part of the Staff and Duke that they
7 do not oppose standing on BREDLs part, and on the part of the Staff that it agrees that at least one contention submitted by BREDL is admissible (i.e., Contention 7; see NRC Staff Response to BREDLs Supplemental Petition to Intervene and [NIRS] Contentions (Nov. 10, 2003), at 18);
the distinction drawn by the Staff seems, to an extent, to elevate form over substance. This would seem, indeed, to be particularly true in view of efforts to move this case forward expeditiously in a manner more concerned with substance than form, in a context of, among other things, various interruptions of the Boards ongoing deliberations on pending non-security-related contentions (including Contention 7), in a fairly active series of events in this proceeding since we first heard oral argument on non-security-related contentions on December 3-4, 2003 the most recent example of which involves the Staffs aforementioned decision to postpone a meeting scheduled for February 6, pending the outcome of its appeal of the Boards ruling on it, rather than have a transcript taken to preserve the status quo and move forward without delay.
We must, however, address the situation before us, in the context in which it presents itself.
The Staff and Duke also argue that Dukes submittal provides sufficient information for BREDL to prepare contentions relating to the submittal, that Duke did not use any of the classified information at issue in formulating its submittal, and that the Staff will evaluate the submittal and thus BREDL can also evaluate it based solely on publicly available information. See, e.g., Tr. 851. In addition, it is argued that Duke has essentially done all that is reasonable for it to do. Duke has as well put forth various arguments distinguishing MOX fuel assemblies from other SSNM, as well as distinguishing the proposal at issue from various characteristics of existing Category 1 facilities. Tr. 883-86. And we note Dukes argument that the real issue is whether BREDL can identify a plausible, meaningful vulnerability with respect to the MOX fuel lead assemblies, which it should be able to do through reviewing the currently available material and discerning from them any practical issues of diversion of these lead
8 4As we have previously noted, based on his experience as well as security-related articles that Dr. Lyman has written, we consider that his expertise should be sufficient to assemblies that are unanticipated by the existing Catawba security plan (with the addition of the enhancements identified in the Security Submittal). Duke Energy Corporations Opposition to
[BREDL] Request for Need to Know Determination and Motion for Extension of deadline for Filing Security Contentions (Jan. 20, 2004) (designated as safeguards information) (hereinafter Duke Response), at 11-12.
While parts of these arguments go to the merits of the submittal, we do find some of them to be persuasive, to an extent. We do not overlook BREDLs argument that, in order to address whether it has a genuine dispute with Duke on a material issue of law, or whether the application contains information on a relevant matter as required by law, as required under 10 C.F.R. § 2.714(b)(2)(iii), it must be informed of what the law is; and that the items at issue in effect serve as the law or standards in this proceeding, in that they replace standards in place prior to the terrorist attacks of September 11, 2001. BREDL Motion at 5. And we do find some merit in BREDLs arguments in this regard.
We also note, however, that, unlike the situation addressed by our January 29 rulings, which involve significant reliance by Duke on certain safeguards standards relating to nuclear power plants, there does not appear to be similar reliance with regard to classified Category 1 facility standards (wherever they may be found). In addition, with regard to the sufficiency or vulnerability of the concrete measures Duke proposes, in the context of the physical configuration, weight, method of storage, and other aspects of the fuel assemblies at issue, these are factual issues that, although obviously related to the standards in question, are of such a nature that an expert on security issues should be able to address them on a factual basis.4
9 prepare such a contention or contentions.
We expect that there will come a time in this proceeding when contentions on the legal issues BREDL outlines would come into play, assuming we admit any contentions so as to admit BREDL as a party intervenor in the proceeding. And (to the same effect as argued by BREDL) in making our ultimate rulings on any security issues that may be raised we would view ourselves as critically unequipped without certain non-public information on both the baseline standards covering Catawba without MOX fuel and those standards from which Duke now seeks exemption, as discussed in more detail below. Thus, if we do admit BREDL as a party, at such time a renewal of its motion with regard to the information in question herein might be appropriate. For now, however, in todays threat environment, we find that a balancing of all relevant factors leads us to a ruling to the effect propounded by the Staff, that allowing access to such classified information as is at issue herein prior to admitting BREDL as a party is inappropriate under the circumstances. We will, therefore, limit BREDL, at this time, to submitting factual issue contentions relating to the sorts of factual matters discussed above a task which we do find to be a possible one along, of course, with any others BREDL may file based on the information they have in hand as of the deadline for security-related contentions.
We have previously set a deadline of two weeks from the date the Staff provides the information covered in our January 29 rulings, for the filing of any security-related contentions.
Whether or not the Commission upholds our decision on that information, we will allow BREDL this two-week period of time (from either the date of provision of the materials or the date when it is clear that they are not going to be required to be provided) to file the factual issue security-related contentions of the nature described, along with any other security-related
10 contentions BREDL may wish to file at such time based upon the information then available to it. We view the information ordered in our January 29 rulings as being significantly important to BREDL in doing this, in that Duke itself has relied on facts that no participant has disagreed are in essence, as a practical matter, based on and contained in that information. Even without this information, however, we view the equities on these issues as warranting the two-week time period to prepare security-related contentions, given the sequence of events that has occurred in the past several months that relate to security issues, during which time BREDL has consistently put forth great effort to address security-related issues in this proceeding.
Moreover, in light of our rulings today, we will be disinclined to deny any factual-issue contentions based on a fairly broad range of rational values for force, weaponry and related sorts of issues, because of any objections based in any way on any asserted flaws relating in any way to standards from which Duke is seeking exemption that are not in the public record.
We say this in part because, notwithstanding Dukes and the Staffs emphatic arguments that the standards in question i.e., those that would apply to Catawba as a Category 1 facility during at least a critical period of time, were it not to be granted the exemptions it seeks are to be found in toto in the regulations at issue, a cursory examination of them illustrates that this is not an accurate characterization. To consider but one example, involving three related provisions: 10 C.F.R. § 73.46(b)(9) provides that [t]he licensee shall conduct Tactical Response Team and guard exercises to demonstrate the overall security system effectiveness and the ability of the security force to perform response and contingency plan responsibilities... and that [t]he licensee shall use these exercises to demonstrate its capability to respond to attempts to steal strategic special nuclear material.... 10 C.F.R.
§73.1(a)(2) defines Theft or diversion of formula quantities of strategic special nuclear material as (i) A determined, violent, external assault, attack by stealth, or deceptive actions
11 by a small group.... The meaning of small is not specified. This is the sort of thing that is found in the design basis threat for any given facility. This information is classified for all Category 1 facilities. The classified information sets the standard insofar as the number of intruders against whom a licensee must be prepared to protect is involved, as argued by BREDL. See, e.g., BREDL Motion at 7, Tr. 861-62. To the extent that there have been any arguments that this information, regarding numbers of intruders against whom one must protect, is inconsequential, we find such arguments to be without merit. Their very classification illustrates the significance and importance of them.
Furthermore, notwithstanding that this sort of information has not come into play by virtue of any apparent significant reliance on it by Duke or the Staff to date, it is unlikely that the Staff who perform review of Dukes exemption requests or, as indicated above, the Licensing Board in resolving any security contentions that may relate to these sorts of issues, will be able to make any meaningful determinations without knowledge and awareness of the classified standards in this regard. Therefore, at an appropriate point in this proceeding, assuming any security contentions are admitted, some discovery with regard to this sort of information might be appropriate (governed, of course, by the protective order in this proceeding and any addenda thereto).
In light, however, of our balancing of the considerations discussed above, including BREDLs current non-party status and the appropriately strong security concerns associated with the sort of classified information we discuss above in todays post-9/11 threat environment, we do not find a need to know on the part of BREDL with regard to such information at this time.
Finally, again, in recognition of the significant security concerns that have been recognized by all participants in this proceeding, we once more emphasize the need for all
12 5Unlike our January 29, 2004, Memorandum and Order, copies of which (as safeguards Information) were not sent by any electronic means to the participants (notwithstanding a notation to this effect in that document, which was incorrect and in error), copies of this Memorandum and Order were, as publicly available information, sent this date by Internet e-mail transmission to all participants or counsel for participants in this proceeding.
participants, including not only BREDL but also the Staff and Duke, to ensure that all required procedures set forth in the December 15, 2003, Protective Order are complied with regarding any and all safeguards information to which any participant has access; to take whatever measures are necessary to protect against even any inadvertent disclosure of such information, at all points in this proceeding and thereafter; and, absent full agreement among all participants and appropriate Staff security experts, to bring any issues and disputes on such matters to the Boards attention at the earliest possible time henceforth, so that all such matters can be handled appropriately.
It is so ORDERED.
THE ATOMIC SAFETY AND LICENSING BOARD
/RA/
Ann Marshall Young, Chair ADMINISTRATIVE JUDGE
/RA/
Thomas S. Elleman ADMINISTRATIVE JUDGE Rockville, Maryland February 17, 20045
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 FOR NEED TO KNOW DETERMINATION REGARDING CLASSIFIED DOCUMENTS) 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 Adjudication U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Administrative Judge Ann Marshall Young, Chair Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Administrative Judge Anthony J. Baratta Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Administrative Judge Thomas S. Elleman Atomic Safety and Licensing Board Panel 5207 Creedmoor Rd., #101 Raleigh, NC 27612 Susan L. Uttal, Esq.
Antonio Fernández, Esq.
Kathleen A. Kannler, Esq.
Office of the General Counsel Mail Stop - O-15 D21 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Michael S. Tuckman, Executive Vice President Nuclear Generation Duke Energy Corporation 526 South Church Street P.O. Box 1006 Charlotte, NC 28201-1006 Mary Olson Director of the Southeast Office Nuclear Information and Resource Service 729 Haywood Road, 1-A P.O. Box 7586 Asheville, NC 28802 Diane Curran, Esq.
Harmon, Curran, Spielberg
& Eisenberg, L.L.P.
1726 M Street, NW, Suite 600 Washington, DC 20036
2 Docket Nos. 50-413-OLA and 50-414-OLA LB MEMORANDUM AND ORDER (RULING ON BREDL MOTION FOR NEED TO KNOW DETERMINATION REGARDING CLASSIFIED DOCUMENTS)
David A. Repka, Esq.
Anne W. Cottingham, Esq.
Mark J. Wetterhahn, Esq.
Winston & Strawn LLP 1400 L Street, NW Washington, DC 20005 Lisa F. Vaughn, Esq.
Duke Energy Corporation Mail Code - PB05E 422 South Church Street P.O. Box 1244 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 17th day of February 2004