ML041130216

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LB Order (Regarding Removal of Portion of Transcript from Safeguards Information Category)
ML041130216
Person / Time
Site: Catawba  Duke Energy icon.png
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

DOCKETED RAS 7646 UNITED STATES OF AMERICA USNRC NUCLEAR REGULATORY COMMISSION April 21,2004 (252PM)

ATOMIC SAFETY AND LICENSING BOARD OFFICE OF SECRETARY RULEMAKINGS AND Before Administrative Judges:

ADJUDICATIONS STAFF Ann Marshall Young, Chair Anthony J. Baratta SERVED April 21,2004 Thomas S. Elleman i

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 April 21, 2004 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).

statement of the Board by the Board chair, found at pages 1503-12 (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.

1503 1 the basic ground rules for this proceeding, 2 paragraph 3 says that -- entitled IIService on 3 Licensing Board Members and Other Participants.I t 4 Absent some other directive from the Board, all 5 filings in the case should be served on the Board and 6 the other - - and the other participants so as to 7 ensure receipt on or before the filing deadline.

8 And there are various other similar 9 statements in there, and I would encourage all parties 10 to pay attention to that, as well as a l l other things 11 that we set forth in our orders. Theyre not there 12 just as boilerplate, and it is fundamental that if 13 parties dont get documents in time to give them very 14 much consideration it does handicap them in making 15 their arguments.

16 Second, we wanted to say just a couple of 17 things about the order that we issued yesterday. And 18 I m just going to read to you a statement that we have 19 agreed upon, given that the timing issues are in 20 somewhat of an unusual posture a t this point.

21 All right. The parties are aware that 22 yesterday the Licensing Board issued an order in which 23 we stated several things relating to the schedule in 24 this proceeding. We stated, first, that pending any 25 further rulings to the contrary, all previously s e t

1504 1 deadlines and dates shall remain in place, except for 2 the earlier March 19th deadline f o r BREDL filing 3 initial discovery requests on the non-security-related 4 contentions.

5 We further indicated that we would address 6 the setting of a new deadline for this, which will be 7 for a date in the very near future, at the already-8 scheduled March 25 status conference. We also 9 informed the parties -- all parties -- that 10 notwithstanding any earlier discussion suggesting 11 anything to the contrary, no party should assume that 12 any delays of the current schedule will be granted 13 absent a stay from the Commission.

14 We also set deadlines of March 3 0 for the 15 filing of any amended contentions arising out of the 16 previously-admitted contention 3, and Duke's March 1 17 responses to the Staff's RAIs relating to 18 alternatives, and April 8 for the filing of any 19 contentions based on Duke's responses to the Staff's 20 security-related ?AIS.

21 We would note that we are also aware that 22 there is another document on which Duke has asked the 23 Staff to make a need-to-know determination, namely a 24 revised Attachment 1 to Duke's September 15, 2003, 25 security submittal, and that this determination was

1505 1 made late yesterday afternoon, which, assuming that 2 there was concurrent availability, would lead to a 3 deadline of April 16 for any contentions based on 4 that.

5 We noted, finally, that any necessary 6 modifications to our earlier set deadlines and 7 schedule, or any further deadlines and schedules, a would be set in accordance with our intention to move 9 this proceeding forward in the most efficient and 10 expeditious manner possible, taking into account all 11 appropriate time and other factors that present 12 themselves in the coming days, weeks, and months.

13 We are obviously aware of Duke's appeal of 14 our March 5 rulings on the non-security-related 15 contentions, and of Duke's request on March 16 that we 16 suspend discovery and all other proceedings related to 17 the non-security-related contentions until the 18 Commission has ruled on Duke's appeal.

19 Tuesday, in discussing this, it appeared 20 that all parties - - for different reasons - - had no 21 problem with this. Also, Duke counsel asked us to 22 schedule time in July of this year for hearing time in 23 the same way that we scheduled the May and June times 24 that we have already set aside.

25 We discussed the fact that setting any

1506 1 July hearing dates would make it virtually impossible 2 for us to get out any ruling on that by the August 3 timeline that we have been aiming to meet, if at all 4 possible, within the context of providing a fair and 5 meaningful hearing of all appropriate issues in this 6 proceeding.

7 After our meeting, we discussed these 8 issues further, and also actually discussed the 9 scheduling issues with the Chief Judge as part of our 10 effort to make sure he is kept aware of all scheduling 11 issues, so that, for example, any conflicts can be 12 avoided.

13 Given various factors, including the 14 potential conflict Judge Baratta might have in July, 15 we ultimately determined that we did not want to leave 16 the parties with the impression that we were in 17 agreement with putting aside for the future any 18 proceedings on the non-security-related contentions, 19 and felt that this matter would more appropriately be 20 posed to the Commission in a Motion for Stay.

21 We, therefore, issued the order yesterday 22 informing the parties of the above circumstances. We 23 will consider these further next week on March 25. In 24 the meantime, however, we also think it might be 25 helpful to the parties to give you some insights that

1 might help you in your activities relating to the non-2 security-related contentions up to the point that the 3 Commission might stay these activities. And I guess 4 I should add "or rule on them."

5 First, we want to let BREDL counsel know 6 that, absent a stay, we will be inclined to set a 7 deadline for the issuance of initial discovery 8 requests very shortly after our March 25 conference, 9 for March 26 or 29, for example, so that you should 10 probably get started on these in advance of that date.

11 We realize that this puts you in the 12 position of starting work on something that may later 13 be stayed or made unnecessary, but we feel that it is 14 important not to get slowed down in this proceeding 15 absent a Commission indication that this is 16 appropriate in light of Duke's appeal.

17 Second, we want to let all parties know 18 that we will be looking at a schedule of dates for the 19 filing of various discovery requests on an expedited 20 schedule, followed by quite shortened times for 21 responses, specific times for depositions, specific 22 deadlines for any discovery-related motions, motions 23 to compel, motions to quash, any objections to 24 discovery, and so forth, and specific dates for 25 argument on any objections or motions.

1508 1 We will expect you to bring any possible 2 disputes to o u r attention as soon as possible, so that 3 we can handle these as quickly as possible within the 4 context of everyone's schedule, as well as the 5 schedule dates we set for all these events.

6 Finally, we have observed from Duke's 7 appeal that there may be some areas of confusion that 8 we might clear up to some degree with regard to the 9 proceedings before us relating to the non-security-10 related contentions, until and unless the Commission 11 issues any stay, or otherwise instructs us to set 12 aside all such non-security-related proceedings, of 13 course, and also, of course, without getting into any 14 additions to or changes of our prior rulings.

15 We note in this regard that Duke has 16 raised several issues that it contends we have left 17 unresolved, and the suggestion has been made that we 18 have somehow expanded the original underlying 19 contentions, portions of which formed the refrarned 20 contentions 1 and 2.

21 We want to emphasize several points ~

22 First, our reframing of the original issues in the 23 original contentions 1, 2, 6, 7, 10, 11, and 12, 24 should not be taken to expand the issues presented in 25 the original contentions in any way. We want to make

1509 1 it clear that nothing of the sort was intended, and we 2 would direct the parties to our statement on page 4 2 3 of the slip opinion of LBP-04-04 that we "deny all 4 portions not included within the" reframed 5 contentions.

6 Further, with regard to any issue that any 7 party feels are unresolved, we would direct the 8 parties to the reframed contentions themselves. So 9 long as we are going forward on these, they should be 10 taken to mean what they say, no more and no less.

11 With regard to issues of discovery 12 relating to contentions 1 and 2, we would direct the 13 parties to the NRC rules relating to discovery, 14 including 10 CFR Section 2.740(b) on the scope of 15 discovery.

16 And without reading the whole section, 17 which you can do, we note that the standard is that 18 parties may obtain discovery regarding any matter not 19 privileged which is relevant to the subject matter 20 involved here, relevant to the issues posed in 21 contentions 1 and 2, "whether it relates to the claim 22 or defense of any other party, including the 23 existence, description, nature, custody, condition, 24 and location of any books, documents, or other 25 tangible things.Ii

1510 1 Further, skipping down to near the end of 2 subsection (b)(1), that it is not ground for objection 3 that the information sought will be inadmissible at 4 the hearing, if the information sought appears 5 reasonably calculated to lead to the discovery of 6 admissible evidence. You can read the rules on this.

7 Section 2.740 (c) deals with protective 8 orders. Section (d) deals with the sequence and 9 timing of discovery, and as we have said we are 10 looking at a schedule that would place some control on 11 the sequence and timing of discovery, including for 12 the resolutions of any disputes that may arise.

13 Regarding evidence on the contentions, 14 evidence will be admitted if it is, as required by 15 10 CFR Section 2.743 (c), relevant, material, and 16 reliable, and not unduly repetitious.

17 We do not feel it is appropriate to make 18 any further statement on why we ruled the way we did.

19 Our memorandum and order stands, and the Commission 20 will be reviewing it in the context of Duke's appeal.

21 Assuming, as I believe we must, until directed 22 otherwise, in the context of the scheduling 23 considerations we have addressed, assuming we go 24 forward on the contentions, we will proceed based on 25 the wording of the reframed contentions and will make

- - --. 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 I

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

!c non-security-related contentions, then of course we C will do that. But that is the prerogative of the 1C Commission, and we do not feel it appropriate for US 11 to, in effect, stay these matters at this time in 12 light of the scheduling considerations and 13 difficulties that face us all in this proceeding.

14 We will try to accommodate each party's 15 situation as much as possible, in a context of moving 16 the entire proceeding forward expeditiously. But we 17 will also count on all parties to proceed in 18 accordance, both with the schedules that we will be 19 producing for you and with the need we all have to 20 achieve our respective functions in this process - -

21 the Petitioner, the Staff, the Applicant, and the 22 Licensing Board.

23 We hope that's helpful to you in doing 24 your own planning. And unless there are any other 25 issues that we need to address today, that would

1512 1 conclude these proceedings. Mr. Repka, you raised 2 your hand just in time. What would you like to - -

3 MR. REPKA: I wanted to get in under the 4 wire. I have one question regarding the March 17th 5 order. It states on page 2 that - - it states on 6 page 1 that, pending any further rulings, all 7 previously set deadlines and dates shall remain in 8 place, except that BREDL will not be required to file 9 its initial discovery request on March 19th.

10 That March 19th deadline applied to Duke 11 as well. I wanted to clarify that - -

12 JUDGE YOUNG: Yes.

13 MR. REPKA: -- we also would not be 14 required to file - -

15 JUDGE YOUNG: Yes.

_ I 16 MR. REPKA: - - tomorrow.

17 JUDGE YOUNG: Yes, I apologize. I - - yes.

18 MR. REPKA: Thank you.

19 MS. UTTAL: And I assume that the Staff 20 would not be required to file.

21 JUDGE YOUNG: Yes. And the only reason we 22 put that in there was because we had already said that 23 yesterday - - two days ago. And we're going to take up 24 all these issues again next week, and we'll see where 25 we are at that point.

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )

)

DUKE ENERGY CORPORATION ) Docket Nos. 50-413-OLA 1 50-414-OLA (Catawba Nuclear Station, Units 1 and 2) )

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 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., #lo1 U.S. Nuclear Regulatory Commission Raleigh, NC 27612 Washington, DC 20555-0001 Susan L. Uttal, Esq. Henry B. Barron, Executive Vice President Antonio Fernandez, Esq. Nuclear Operations Margaret J. Bupp, Esq. Duke Energy Corporation Office of the General Counsel 526 South Church Street Mail Stop 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 ORDER (REGARDING REMOVAL OF PORTION OF TRANSCRIPT FROM SAFEGUARDS INFORMATION CATEGORY)

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 16thSt., NW, Suite 404 Washington, DC 20036 Office of the Secretary of the Commission>

Dated at Rockville, Maryland, this 21st day of April 2004