ML041190583

Catawba - Nuclear Regulatory Commission Staff'S Response to Blue Ridge Environmental Defense League'S Amended Contentions on Duke'S Security Plan Submittal

ML041190583
Person / Time
Site:	Catawba
Issue date:	04/26/2004
From:	Fernandez A 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 7667
Download: ML041190583 (4)

Text

RAS 7667 April 26, 2004 DOCKETED 04/27/04 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 BLUE RIDGE ENVIRONMENTAL DEFENSE LEAGUES AMENDED CONTENTIONS ON DUKES SECURITY PLAN SUBMITTAL Pursuant to 10 C.F.R. § 2.714(c),1 the staff of the Nuclear Regulatory Commission (Staff) hereby responds to the Blue Ridge Environmental Defense Leagues (BREDL) Amended Contentions on Duke Energy Corporations (Duke) Security Plan Submittal. See [BREDLs]

Amended Contentions on Dukes Security Plan Submittal (April 8, 2004) (BREDLs Amended Security Contentions). In substance, BREDL is attempting to amend the bases it previously identified in support of contentions filed earlier in this proceeding. The Staff does not oppose acceptance of BREDLs amended bases.

Additionally, the Staff hereby responds to the Boards suggestion that the Staff provide support for its position, stated at a telephone conference held on April 20, 2004, that the bases of a contention define its scope. See Tr. 1720. During the conference, the Board expressed surprise at the Staffs assertion that the articulated bases of a contention define the scope of that contention. Id. In fact, the position stated by the Staff on this issue is correct. The Commission has recently reiterated, [w]hen an issue arises over the scope of an admitted contention, NRC opinions have long referred back to the bases set forth in support of the contention. Duke Energy 1

Since this proceeding was instituted prior to the Commissions promulgation of the new hearing procedures in revised 10 C.F.R. Part 2, references to 10 C.F.R. Part 2 are to old Part 2.

Corp. (McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units 1 and 2),

CLI-02-28, 56 NRC 373, 379 (2002) (citations omitted). Further, in a case involving the Seabrook nuclear power plant, the Appeal Board observed that [t]he reach of a contention necessarily hinges upon its terms coupled with its stated bases. Pub. Serv. Co. of N.H. (Seabrook Station, Units 1 and 2), ALAB-899, 28 NRC 93, 97 (1988), affd sub nom. Massachusetts v. NRC, 924 F.2d 311 (D.C. Cir.), cert. denied, 502 U.S. 899 (1991). The Appeal Board went on to state that an intervenor is not free to change the focus of its admitted contention, at will, as the litigation progresses. Id. at 97 n.11. Accordingly, the scope of a contention in the litigation is determined by the bases submitted in support of the contention.

CONCLUSION Based on the forgoing, the Staff submits that the bases proposed in BREDLs Amended Security Contentions are valid.

Respectfully submitted,

/RA/

Antonio Fernández Counsel for the NRC staff Dated at Rockville, Maryland this 26th day of April, 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 BLUE RIDGE ENVIRONMENTAL DEFENSE LEAGUES AMENDED CONTENTIONS ON DUKES SECURITY PLAN SUBMITTAL 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 26TH day of April, 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)

Lisa F. Vaughn, Esq.** David A. Repka, Esq.**

Legal Department Anne W. Cottingham, Esq.**

Mail Code - PB05E Winston & Strawn LLP Duke Energy Corporation 1400 L Street, N.W.

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

/RA/

Antonio Fernández Counsel for NRC Staff