ML041260026
| ML041260026 | |
| Person / Time | |
|---|---|
| Site: | Catawba  |
| Issue date: | 04/30/2004 |
| From: | Uttal S NRC/OGC |
| To: | Blue Ridge Environmental Defense League |
| Byrdsong A T | |
| References | |
| 50-413-OLA, 50-414-OLA, ASLBP 03-815-03-OLA, RAS 7702 | |
| Download: ML041260026 (6) | |
Text
RAS 7702 RELATED CORRESPONDENCE April 30, 2004 DOCKETED 05/03/04 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) )
NRC STAFFS (1) OBJECTIONS TO THE BLUE RIDGE ENVIRONMENTAL DEFENSE LEAGUES SECOND SET OF DISCOVERY REQUESTS TO TO NRC STAFF AND (2) REQUEST FOR PROTECTIVE ORDER INTRODUCTION On April 26, 2004, the Blue Ridge Environmental Defense League (BREDL) filed the Blue Ridge Environmental Defense Leagues Second Set of Discovery Requests to NRC Staff (Request) in the above-captioned matter. The Request consists of three requests for production of documents: Requests No.I-9, II-5, and II-6.
REQUEST NO. I-9 Any and all documents containing the Staffs evaluation of the relationship between the behavior of Next Generation Fuel and MOX fuel, as discussed in Dukes April 23, 2004, presentation to the NRC Staff.
REQUEST NO. II-5. Any and all documents containing data from the VERCORS test series that was referred to by members of the Reactor Fuels Subcommittee of the Advisory Committee on Reactor Safeguards that was held at the NRC on April 21, 2004. Based on statements made by ACRS members at that meeting, it is BREDLs understanding that the NRC Staff has recently come into possession of this information.
REQUEST NO. II-6 Any and all documents containing the Staffs evaluation of the effect of using Next Generation Fuel and MOX fuel on the potential for or consequences of a severe accident at the Catawba nuclear power plant.
The NRC Staff (Staff) hereby files its objections to BREDLs Request, as discussed below.
As a preliminary matter, the Staff notes that while some of BREDLs discovery requests may not be objectionable in themselves, specific documents that the staff compiles in response to BREDLs Request may be exempt from disclosure under 10 C.F.R. § 2.790 and principles of discovery applicable in this proceeding. Therefore, pursuant to 10 C.F.R. § 2.744, the Staff objects to the production of such documents.1 The specific documents subject to objection will be identified in the Staffs response to the Request.
OBJECTIONS
- 1. To the extent that BREDLs document production requests seek the production of publicly available documents, the Staff objects. When any . . . document . . . sought is reasonably available from another source . . . sufficient response to an interrogatory involving such materials would be the location [and] title [of] the . . . document. 10 C.F.R. § 2.740; see also Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No. 1), CLI-79-8, 10 NRC 141, 147-48 (1979) (A party need only state that a document is publicly available and provide sufficient information to locate the document.). Therefore, the Staffs response to BREDLs requests for document production will be limited to the production of documents that are not publicly available (assuming they otherwise may be released in discovery) and a list of the titles and locations of documents that are in the public domain or available from another source.
- 2. To the extent that BREDLs document production requests seek the production of documents covered under the deliberative process privilege, the Staff objects. The deliberative process privilege is designed to encourage frank discussions within the Government regarding the 1
The Boards Corrected Order (Confirming Matters Addressed at March 25 Telephone Conference), March 30, 2004, directed the parties to serve any objections to the second round of written discovery by April 30, 2004. The responses to the second round of discovery are not due until May 12, 2004. Therefore, the Staff has not yet designated the documents that may be responsive to BREDLs Request and cannot at this time identify those documents that are within the scope of the categorical objections identified herein.
formulation of policy and the making of decisions. Georgia Power Co. (Vogtle Electric Generating Plant, Units 1 and 2), CLI-94-5, 39 NRC 190, 197-98 (1994). Communications are deliberative if they reflect a consultative process. Id. at 197. This privilege applies even where a purely factual matter is inextricably intertwined with privileged communications or the disclosure of the factual material would reveal the agencys decision-making process. Id. Therefore, pursuant to 10 C.F.R. § 2.744, the Staff objects.2
- 3. To the extent that the document production requests seek the production of proprietary documents, they are exempt from disclosure under 10 C.F.R. § 2.790. See 10 C.F.R. § 2.790. See also The Trade Secrets Act, 18 U.S.C. § 1905 (providing penalties for the for the disclosure of trade secrets by federal employees, except as provided by law). Therefore the staff objects.
MOTION FOR PROTECTIVE ORDER The production of NRC records and documents is governed by 10 C.F.R.§ § 2.790 and 2.744. Section 2.744 states that [t]he provisions of § 2.740(c) . . . shall apply to production of NRC records and documents pursuant to [2.744]. 10 C.F.R. § 2.744(h). The NRC staff, 2
Pursuant to the Licensing Boards Order of April 8, 2004, the Staff filed a brief on April 14, 2004 discussing, in more detail, the case law regarding the deliberative privilege. See NRC Staff Brief in Response to the ASLBs April 8, 2004 Order (April 14, 2004).
therefore, requests that the Board issue a protective order denying BREDLs request for production of documents objected to by the Staff as subject to the deliberative process exception or as proprietary, pursuant to 10 C.F.R. § 2.740(c).3 Respectfully submitted,
/RA/
Susan L. Uttal Counsel for NRC Staff Dated at Rockville, Maryland This 30th day of April 2004 3
The Staff recognizes that a protective order cannot be issued until specific documents have been designated by the Staff as subject to the Staffs objections.
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 NRC STAFFS (1) OBJECTIONS TO THE BLUE RIDGE ENVIRONMENTAL DEFENSE LEAGUES SECOND SET OF DISCOVERY REQUESTS TO NRC STAFF AND(2) REQUEST FOR PROTECTIVE ORDER 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 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/
Susan L. Uttal Counsel for NRC Staff