ML041130216
| ML041130216 | |
| Person / Time | |
|---|---|
| Site: | Catawba  |
| Issue date: | 04/21/2004 |
| From: | 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 7646 | |
| Download: ML041130216 (14) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION DOCKETED USNRC April 21,2004 (252PM)
OFFICE OF SECRETARY ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
Ann Marshall Young, Chair Anthony J. Baratta Thomas S. Elleman RULEMAKINGS AND ADJUDICATIONS STAFF SERVED April 21,2004 In the Matter of i (Catawba Nuclear Station, Units 1 and 2)
April 21, 2004 Docket Nos. 50-41 3-OLA, 50-41 4-OLA DUKE ENERGY CORPORATION ASLBP NO. 03-81 5-03-OLA ORDER (Regardinq Removal of Portion of Transcript from Safeguards Information Cateqorv)
Pursuant to a request of Duke Energy Corporation in this proceeding, the Licensing Board hereby removes a portion of the transcript for March 18, 2004, from the Safeguards Information category under 10 C.F.R. § 73.21 (i). After consultation with Mr. Robert Manili, appointed by the Commission to assist the Board with matters relating to security classification of materials, the Board finds that the designated material, consisting of the reading of a 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. By Memorandum and Order dated March 5, 2003, Petitioner Blue Ridge Environmental Defense League (BREDL) was admitted as a party in the proceeding, after having filed a petition to intervene and request for hearing in response to a July 2003 Federal Register notice concerning this application. See LBP-04-04, 59 NRC -
(2004); 68 Fed. Reg. 44,107 (July 25, 2003).
RAS 7646 statement of the Board by the Board chair, found at pages 1503-1 2 (a hard copy of which is attached), may be released as publicly available information.
It is so ORDERED.
FOR THE ATOMIC SAFETY AND LICENSING BOARD ADMl NlSTRATlVE JUDGE Rockville, Maviand April 21,2004 Copies of this Order were sent this date by Internet e-mail or facsimile transmission, if available, to all participants or counsel for participants.
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10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the basic ground rules for this proceeding, paragraph 3 says that - -
entitled IIService on Licensing Board Members and Other Participants.
I t Absent some other directive from the Board, all filings in the case should be served on the Board and the other - - and the other participants so as to ensure receipt on or before the filing deadline.
And there are various other similar statements in there, and I would encourage all parties to pay attention to that, as well as a l l other things that we set forth in our orders. Theyre not there just as boilerplate, and it is fundamental that if parties dont get documents in time to give them very much consideration it does handicap them in making their arguments.
Second, we wanted to say just a couple of things about the order that we issued yesterday. And I m just going to read to you a statement that we have agreed upon, given that the timing issues are in somewhat of an unusual posture a t this point.
All right. The parties are aware that yesterday the Licensing Board issued an order in which we stated several things relating to the schedule in this proceeding. We stated, first, that pending any further rulings to the contrary, all previously s e t
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9 1 0 11 1 2 1 3 1 4 1 5 16 1 7 1 8 19 2 0 2 1 22 23 24 25 1504 deadlines and dates shall remain in place, except for the earlier March 19th deadline f o r BREDL filing initial discovery requests on the non-security-related contentions.
We further indicated that we would address the setting of a new deadline for this, which will be for a date in the very near future, at the already-scheduled March 25 status conference.
We also informed the parties - -
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that notwithstanding any earlier discussion suggesting anything to the contrary, no party should assume that any delays of the current schedule will be granted absent a stay from the Commission.
We also s e t deadlines of March 30 for the filing of any amended contentions arising out of the previously-admitted contention 3, and Duke's March 1 responses to the Staff's RAIs relating to alternatives, and April 8 for the filing of any contentions based on Duke's responses to the Staff's security-related ?AIS.
We would note that we are also aware that there is another document on which Duke has asked the Staff to make a need-to-know determination, namely a revised Attachment 1 to Duke's September 15, 2003, security submittal, and that this determination was
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1 0 11 1 2 1 3 1 4 15 1 6 1 7 1 8 1 9 20 2 1 22 23 24 25 made late yesterday afternoon, which, assuming that there was concurrent availability, would lead to a deadline of April 16 for any contentions based on that.
We noted, finally, that any necessary modifications to our earlier set deadlines and schedule, or any further deadlines and schedules, would be set in accordance with our intention to move this proceeding forward in the most efficient and expeditious manner possible, taking into account all appropriate time and other factors that present themselves in the coming days, weeks, and months.
We are obviously aware of Duke's appeal of our March 5 rulings on the non-security-related contentions, and of Duke's request on March 16 that we suspend discovery and all other proceedings related to the non-security-related contentions until the Commission has ruled on Duke's appeal.
Tuesday, in discussing this, it appeared that all parties - - for different reasons - - had no problem with this. Also, Duke counsel asked us to schedule time in July of this year for hearing time in the same way that we scheduled the May and June times that we have already set aside.
We discussed the fact that setting any
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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1506 July hearing dates would make it virtually impossible for us to get out any ruling on that by the August timeline that we have been aiming to meet, if at all possible, within the context of providing a fair and meaningful hearing of all appropriate issues in this proceeding.
After our meeting, we discussed these issues further, and also actually discussed the scheduling issues with the Chief Judge as part of our effort to make sure he is kept aware of all scheduling issues, so that, for example, any conflicts can be avoided.
Given various factors, including the potential conflict Judge Baratta might have in July, we ultimately determined that we did not want to leave the parties with the impression that we were in agreement with putting aside for the future any proceedings on the non-security-related contentions, and felt that this matter would more appropriately be posed to the Commission in a Motion for Stay.
We, therefore, issued the order yesterday informing the parties of the above circumstances. We will consider these further next week on March 25. In the meantime, however, we also think it might be helpful to the parties to give you some insights that
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9 1 0 11 12 1 3 1 4 15 1 6 1 7 1 8 1 9 20 2 1 22 23 24 25 might help you in your activities relating to the non-security-related contentions up to the point that the Commission might stay these activities. And I guess I should add "or rule on them."
First, we want to let BREDL counsel know that, absent a stay, we will be inclined to set a deadline for the issuance of initial discovery requests very shortly after our March 25 conference, for March 26 or 29, for example, so that you should probably get started on these in advance of that date.
We realize that this puts you in the position of starting work on something that may later be stayed or made unnecessary, but we feel that it is important not to get slowed down in this proceeding absent a Commission indication that this is appropriate in light of Duke's appeal.
Second, we want to let all parties know that we will be looking at a schedule of dates for the filing of various discovery requests on an expedited schedule, followed by quite shortened times for responses, specific times for depositions, specific deadlines for any discovery-related motions, motions to compel, motions to quash, any objections to discovery, and so forth, and specific dates for argument on any objections or motions.
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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1508 We will expect you to bring any possible disputes to our attention as soon as possible, so that we can handle these as quickly as possible within the context of everyone's schedule, as well as the schedule dates we set for all these events.
Finally, we have observed from Duke's appeal that there may be some areas of confusion that we might clear up to some degree with regard to the proceedings before us relating to the non-security-related contentions, until and unless the Commission issues any stay, or otherwise instructs us to set aside all such non-security-related proceedings, of course, and also, of course, without getting into any additions to or changes of our prior rulings.
We note in this regard that Duke has raised several issues that it contends we have left unresolved, and the suggestion has been made that we have somehow expanded the original underlying contentions, portions of which formed the refrarned contentions 1 and 2.
We want to emphasize several points
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First, our reframing of the original issues in the original contentions 1, 2, 6, 7, 10, 11, and 12, should not be taken to expand the issues presented in the original contentions in any way. We want to make
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10 11 12 13 14 15 16 17 18 19 20 2 1 22 23 24 25 it clear that nothing of the sort was intended, and we would direct the parties to our statement on page 4 2 of the slip opinion of LBP-04-04 that we "deny all portions not included within the" reframed contentions.
Further, with regard to any issue that any party feels are unresolved, we would direct the parties to the reframed contentions themselves. So long as we are going forward on these, they should be taken to mean what they say, no more and no less.
With regard to issues of discovery relating to contentions 1 and 2, we would direct the parties to the NRC rules relating to discovery, including 10 CFR Section 2.740(b) on the scope of discovery.
And without reading the whole section, which you can do, we note that the standard is that parties may obtain discovery regarding any matter not privileged which is relevant to the subject matter involved here, relevant to the issues posed in contentions 1 and 2, "whether it relates to the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things.
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9 1 0 11 1 2 13 1 4 1 5 16 1 7 18 19 20 21 22 23 24 25 1510 Further, skipping down to near the end of subsection (b)
(1), that it is not ground for objection that the information sought will be inadmissible at the hearing, if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. You can read the rules on this.
Section 2.740 (c) deals with protective orders.
Section (d) deals with the sequence and timing of discovery, and as we have said we are looking at a schedule that would place some control on the sequence and timing of discovery, including for the resolutions of any disputes that may arise.
Regarding evidence on the contentions, evidence will be admitted if it is, as required by 10 CFR Section 2.743 (c), relevant, material, and reliable, and not unduly repetitious.
We do not feel it is appropriate to make any further statement on why we ruled the way we did.
Our memorandum and order stands, and the Commission will be reviewing it in the context of Duke's appeal.
Assuming, as I believe we must, until directed otherwise, in the context of the scheduling considerations we have addressed, assuming we go forward on the contentions, we will proceed based on the wording of the reframed contentions and will make
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C 1C 11 12 13 14 15 16 17 18 19 2 0 21 22 23 24 25 1511 any discovery and evidence-related rulings under the legal standards set forth in the sections we have cited to you today, and any other legal standards.
All in all, we find that proceeding in the manner we have defined will more likely ensure the most efficient handling of this proceeding. If the Commission feels that we should stay all action on the non-security-related contentions, then of course we will do that. But that is the prerogative of the Commission, and we do not feel it appropriate for US to, in effect, stay these matters at this time in light of the scheduling considerations and difficulties that face us all in this proceeding.
We will try to accommodate each party's situation as much as possible, in a context of moving the entire proceeding forward expeditiously. But we will also count on all parties to proceed in accordance, both with the schedules that we will be producing for you and with the need we all have to achieve our respective functions in this process - -
the Petitioner, the Staff, the Applicant, and the Licensing Board.
We hope that's helpful to you in doing your own planning. And unless there are any other issues that we need to address today, that would
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1 0 11 12 1 3 1 4 1 5 1 6 17 1 8 1 9 20 2 1 22 23 24 25 conclude these proceedings. Mr. Repka, you raised your hand just in time. What would you like to - -
MR. REPKA: I wanted to get in under the wire. I have one question regarding the March 17th order.
It states on page 2 that - - it states on page 1 that, pending any further rulings, all previously set deadlines and dates shall remain in place, except that BREDL will not be required to file its initial discovery request on March 19th.
That March 19th deadline applied to Duke as well. I wanted to clarify that - -
JUDGE YOUNG: Yes.
MR. REPKA:
- - we also would not be required to file - -
JUDGE YOUNG: Yes.
MR. REPKA: - - tomorrow.
JUDGE YOUNG: Yes, I apologize. I - - yes.
MR. REPKA: Thank you.
MS. UTTAL: And I assume that the Staff I
would not be required to file.
JUDGE YOUNG: Yes. And the only reason we put that in there was because we had already said that yesterday - - two days ago. And we're going to take up all these issues again next week, and we'll see where we are at that point.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of
)
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DUKE ENERGY CORPORATION
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Docket Nos. 50-413-OLA (Catawba Nuclear Station, Units 1 and 2) 1 50-41 4-OLA
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CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing LB ORDER (REGARDING REMOVAL OF PORTION OF TRANSCRIPT FROM SAFEGUARDS INFORMATION CATEGORY) 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 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Adjudication 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 Susan L. Uttal, Esq.
Antonio Fernandez, Esq.
Margaret J. Bupp, Esq.
Office of the General Counsel Mail Stop 15 D21 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Mary Olson Director of the Southeast Office Nuclear Information and Resource Service 729 Haywood Road, 1-A P.O. Box 7586 Asheville, NC 28802 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 Thomas S. Elleman Atomic Safety and Licensing Board Panel 5207 Creedmoor Rd., #lo1 Raleigh, NC 27612 Henry B. Barron, Executive Vice President Nuclear Operations Duke Energy Corporation 526 South Church Street P.O. Box 1006 Charlotte, NC 28201 -1 006 Diane Curran, Esq.
Harmon, Curran, Spielberg
& Eisenberg, L.L.P.
1726 M Street, NW, Suite 600 Washington, DC 20036
2 Docket Nos. 50-41 3-OLA and 50-41 4-OLA LB ORDER (REGARDING REMOVAL OF PORTION OF TRANSCRIPT FROM SAFEGUARDS INFORMATION CATEGORY)
David A. Repka, Esq.
Anne W. Cottingham, Esq.
Mark J. Wetterhahn, Esq.
Winston & Strawn LLP 1400 L Street, NW Washington, DC 20005 Paul Gunter Nuclear Information and Resource Service 1424 16th St., NW, Suite 404 Washington, DC 20036 Lisa F. Vaughn, Esq.
Duke Energy Corporation Mail Code - PB05E 422 South Church Street P.O. Box 1244 Charlotte, NC 28201 -1 244 Office of the Secretary of the Commission>
Dated at Rockville, Maryland, this 21 st day of April 2004