ML040920250

Nuclear Regulatory Commission Staff'S Response to Duke Energy Corporation'S Motion to Dismiss Contention III

ML040920250
Person / Time
Site:	Catawba
Issue date:	03/30/2004
From:	Uttal S NRC/OGC
To:	Atomic Safety and Licensing Board Panel
Byrdsong A T
References
50-413-OLA, 50-414-OLA, ASLBP 03-815-03-OLA, RAS 7534
Download: ML040920250 (4)

Text

RAS 7534 March 30. 2004 DOCKETED 03/31/04 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

DUKE ENERGY CORPORATION ) Docket Nos. 50-413-OLA

) 50-414-OLA (Catawba Nuclear Station, Units 1 and 2) )

NUCLEAR REGULATORY COMMISSION STAFFS RESPONSE TO DUKE ENERGY CORPORATIONS MOTION TO DISMISS CONTENTION III INTRODUCTION Pursuant to 10 C.F.R. § 2.730(c), the Nuclear Regulatory Commission staff (Staff) hereby responds to Duke Energy Corporations (Duke) March 15, 2004, motion to dismiss Contention III.1 The basis for Dukes motion is that, based on Dukes response to the Staffs Request for Additional Information (RAI), the contention is moot. The Staff does not oppose Dukes motion.

DISCUSSION The Atomic Safety and Licensing Board (Board), in its Memorandum and Order (Ruling on Standing and Contentions), issued March 5, 2004 (Order), admitted Contention III, a reframed and renumbered version of Blue Ridge Environmental Defense Leagues (BREDL) proposed Contention 5.2 Contention III reads:

The Environmental Report is deficient because it fails to consider Oconee as an alternative for the MOX LTAs [mixed oxide lead test assemblies].

Order at 50-51, 63. In its motion to dismiss Contention III, Duke asserted that the contention is moot because the answer to the Staffs RAI provided a discussion of Oconee sufficient to meet the 1

Duke Energy Corporations Motion to Dismiss Contention III, March 15, 2004 (Duke Motion).

2 The Board also admitted reframed and renumbered Contentions I and II.

requirements of the Boards Order, and 10 C.F.R. § 51.30(a), cited therein. See Order at 50-51.

The Staff agrees.

In its Environmental Report (ER), submitted with its license amendment request, Duke did not address Oconee Nuclear Station as an alternative to Catawba for use of the MOX LTAs. A brief discussion of alternatives, as appropriate, is required pursuant to 10 C.F.R. § 51.30(a)(1)(iii).

As part of its review of the ER, the Staff issued Environmental RAIs requesting that Duke provide an assessment of Oconee as alternative facilities for the irradiation of MOX LTAs. On March 1, 2004, Duke responded to the RAIs, providing an analysis of the technical feasibility of using the MOX LTAs at Oconee, concluding that it would not be feasible.

The contention, as admitted, is a contention of omission, in that BREDL complained that the ER is inadequate because it did not address Oconee as an alternative. Since the information has now been supplied in the answer to the Staffs RAI, the contention is moot. See Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2, Catawba Nuclear Station, Units 1 and 2),

CLI-02-28, 56 NRC 373, 383 (2002). Therefore, the Staff does not object to Dukes motion to dismiss Contention III.

CONCLUSION Based upon the foregoing discussion, the Staff does not oppose Dukes motion to dismiss Contention III.

Respectfully submitted,

/RA/

Susan L. Uttal Counsel for NRC staff Dated at Rockville, Maryland this 30th day of March, 2004.

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 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 NUCLEAR REGULATORY COMMISSION STAFFS RESPONSE TO DUKE ENERGY CORPORATIONS MOTION TO DISMISS CONTENTION III 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; and by e-mail as indicated by a double asterisk (**), this 30TH day of March, 2004.

Ann Marshall Young, Chair**

• Office of the Secretary**

• Administrative Judge ATTN: Docketing and Service Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Panel Mail Stop: O-16C1 Mail Stop: T-3F23 Washington, D.C. 20555 U.S. Nuclear Regulatory Commission (E-mail: HEARINGDOCKET@nrc.gov)

Washington, DC 20555-0001 (E-mail: AMY@nrc.gov) Office of Commission Appellate Adjudication*

Anthony J. Baratta**

• Mail Stop: O-16C1 Administrative Judge U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Washington, D.C. 20555 Panel Mail Stop: T-3F23 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Panel Washington, DC 20555-0001 Adjudicatory File*

(E-mail: AJB5@nrc.gov) U.S. Nuclear Regulatory Commission Mail Stop: O-16C1 Thomas S. Elleman** Washington, DC 20555 Administrative Judge Atomic Safety and Licensing Board Diane Curran, Esq.**

Panel Harmon, Curran, Spielberg 5207 Creedmoor Rd. #101 & Eisenberg, L.L.P.

Raleigh, NC 27612 1726 M Street, N.W., Suite 600 (E-mail: elleman@eos.ncsu.edu) Washington, DC 20036 (E-mail: dcurran@harmoncurran.com)

David A. Repka, Esq.**

Lisa F. Vaughn, Esq.** Anne W. Cottingham, Esq.**

Legal Department Winston & Strawn LLP Mail Code - PB05E 1400 L Street, N.W.

Duke Energy Corporation Washington, D.C. 20005-3502 426 S. Church Street (EC11X) (E-mail: drepka@winston.com Charlotte, NC 28201-1006 acotting@winston.com)

(E-mail: lfVaughn@duke-energy.com)

/RA/

Susan L. Uttal Counsel for NRC Staff