ML041700488
| ML041700488 | |
| Person / Time | |
|---|---|
| Site: | Catawba  |
| Issue date: | 06/10/2004 |
| From: | Anthony Baratta, Elleman T, Austin Young Atomic Safety and Licensing Board Panel |
| To: | |
| Byrdsong A T | |
| References | |
| 50-413-OLA, 50-414-OLA, ASLBP 03-815-03-OLA, LBP-04-12, RAS 7924 | |
| Download: ML041700488 (7) | |
Text
LBP-04-12 UNITED STATES OF AMERICA RAS 7924 NUCLEAR REGULATORY COMMISSION DOCKETED 06/10/04 SERVED 06/10/04 ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
Ann Marshall Young, Chair Anthony J. Baratta Thomas S. Elleman In the Matter of Docket Nos. 50-413-OLA, 50-414-OLA DUKE ENERGY CORPORATION ASLBP No. 03-815-03-OLA (Catawba Nuclear Station, Units 1 and 2) June 10, 2004 MEMORANDUM and ORDER (Ruling on BREDL Amendments to Security Contention 5)
On April 8, 2004, Blue Ridge Environmental Defense League (BREDL), which has already been admitted as an intervenor in this proceeding,1 filed a document entitled [BREDL]s Amended Contentions on Dukes Security Plan Submittal (April 8, 2004) [hereinafter BREDL April 8, 2004, Filing]. BREDL filed the document in accordance with a protective order issued December 15, 2003, designating it as Confidential [because it] May Contain Safeguards Information. BREDL Cover Letter and April 8, 2004, Filing. In its filing BREDL submits certain additional information as bases in support of its previously filed and admitted security-related Contention 5. Id.; see LBP-04-10, 59 NRC __ (slip op. at 49-70). Duke Energy Corporation 1
This proceeding involves 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 (LTAs) at the station. By Memorandum and Order dated March 5, 2004, 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-04-4, 59 NRC 129 (2004); 68 Fed. Reg. 44,107 (July 25, 2003). Additional background on this proceeding is provided in LBP-04-4; LBP-04-07, 59 NRC __ (May 6, 2004); and LBP-04-10, 59 NRC __ (May 28, 2004), the last of which is a public, redacted version of an April 12, 2004, Memorandum and Order that originally was issued non-publicly because it contained Safeguards Information. BREDLs new filing proposes amendments to the one contention admitted by the Licensing Board in LBP-04-10.
and the NRC Staff filed responses to this document on April 19 and 26, 2004, respectively.
Answer of Duke Energy Corporation to the [BREDL]s Amended Contentions on Dukes Security Plan Submittal (April 19, 2004) (sealed as Safeguards Information) [hereinafter Duke Response]; [NRC] Staffs Response to [BREDL]s Amended Contentions on Dukes Security Plan Submittal (April 26, 2004) [hereinafter Staff Response]. For the reasons set forth herein, we will permit BREDL to utilize the additional information provided in its April 8, 2004, filing in the litigation of Security Contention 5.
Duke formally opposes admission of the proposed amended bases to Contention 5 as untimely and otherwise inadmissible, posing many of the same arguments originally asserted against admission of Contention 5 itself. Duke Response at 1, 6-10; see LBP-04-10, 59 NRC
__ (slip op. at 58-65). Duke also, however, states among other things that while it wishes to preserve its objection to the admission of these additional bases to Contention 5, it recognizes that the Licensing Boards previous admission of Contention 5 would, as the law of the case, seemingly result in the Licensing Board admitting the amended examples or bases contained in BREDLs . . . filing. Duke Response at 3-4.
The Staff does not oppose acceptance of BREDLs amended bases. Staff Response at 1. The Staff does, however, in response to certain questions raised by the Licensing Board Chair, cite certain NRC case law in support of its earlier oral argument that the articulated bases of a contention define the scope of that contention. Id., see Tr. 1719-21.2 Although we do not view this case law as necessary for the decision herein in light of the above-stated positions of the Staff and Duke on the additional information provided by BREDL in its April 8, 2004, filing, we find that it provides clarification that is appropriate for us to note, in order to 2
We would note that, although BREDLs April 8, 2004, filing was discussed by the parties during an April 20, 2004, telephone conference, see Tr. 1714-22, all parties agreed that no formal oral argument was necessary, Tr. 1717, 1719, 1722, and therefore none was held.
forestall any possible confusion in future stages of this proceeding, particularly as regards Contention 5.
The Staff first cites the Commissions statement that [where] 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. Staff Response at 1-2 (quoting Duke Energy 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)). In addition, the Staff cites a decision in which the then-extant Appeal Board observed that [t]he reach of a contention necessarily hinges upon its terms coupled with its stated bases. Staff Response at 2 (quoting 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. 1991), cert. denied, 502 U.S. 899 (1991)). As noted by the Staff, the Appeal Board in Seabrook went on to state that an intervenor is not free to change the focus of its admitted contention, at will, as the litigation progresses. Staff Response at 2 (quoting Seabrook at 97 n.11).
In sum, under the preceding case law, when determining for any reason the scope of a contention, one looks not only to the contention itself but also to the basis or bases provided for the contention. The bases clarify the reach and focus of a contention, which may not be changed absent an appropriate amendment to a contention. In other words, the basis or bases originally offered in support of a contention, together with the issue(s) stated in the contention itself, establish a sort of envelope within which information will be considered to be within the reach or focus of a contention and therefore relevant in litigation of the contention. Thus, if in preparing for an evidentiary hearing on a contention, an intervenor becomes aware of information that it may wish to present as evidence in the hearing, such information would even if not specifically stated in the original contention and bases be relevant if it falls within the envelope, reach, or focus of the contention when read with the original bases offered
for it.3 If it falls outside such ambit, then an amended contention would be necessary in order for the new information to be considered relevant and admissible.
BREDL in its Amended Contention has in effect really provided additional specific information, which we will not identify herein because it appears to us to constitute Safeguards Information, but which we find does fall within the ambit of its original Contention 5, as admitted in LBP-04-10. As such, in the Boards estimation, it is not really an amendment at all.
Nonetheless, we also note, relative to the late-filing standards in 10 C.F.R. § 2.714(a)(1), that the information submitted by BREDL in its Amended Contention was filed within 30 days of its receipt of certain information that Duke filed on March 1, 2004, in response to certain Staff requests for additional information (RAIs) that were issued on January 30, 2004. BREDL has also argued, persuasively, that its participation with regard to the new information can reasonably be expected to lead to the development of a sound record, that there are no other parties representing BREDLs interest in this proceeding, and that inclusion of the new information will not unduly broaden the proceeding beyond the scope of the originally-admitted Contention 5. BREDL April 8, 2004, Filing at 5.
3 The same principles would apply to information that any party wished to submit as evidence in a proceeding, but we address herein only the issue before us, which concerns additional information submitted by an intervenor.
Based upon the preceding analysis, we will permit BREDL to present evidence on the new information presented in its April 8, 2004, filing at the hearing on Contention 5, and will permit discovery by all parties on the information as well, in accordance with our previously defined schedule for the same.
It is so ORDERED.
THE ATOMIC SAFETY AND LICENSING BOARD
/RA/
Ann Marshall Young, Chair ADMINISTRATIVE JUDGE
/RA/
Anthony J. Baratta ADMINISTRATIVE JUDGE
/RA/
Thomas S. Elleman ADMINISTRATIVE JUDGE Rockville, Maryland 4
June 10, 2004 4
Copies of this Memorandum and Order were sent this date by Internet e-mail or facsimile transmission, if available, to all participants or counsel for participants.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 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 the foregoing LB MEMORANDUM AND ORDER (RULING ON BREDL AMENDMENTS TO SECURITY CONTENTION 5) (LBP-04-12) 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., #101 U.S. Nuclear Regulatory Commission Raleigh, NC 27612 Washington, DC 20555-0001 Susan L. Uttal, Esq. Henry B. Barron, Executive Vice President Antonio Fernández, Esq. Nuclear Operations Margaret J. Bupp, Esq. Duke Energy Corporation Office of the General Counsel 526 South Church Street Mail Stop - O-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 MEMORANDUM AND ORDER (RULING ON BREDL AMENDMENTS TO SECURITY CONTENTION 5) (LBP-04-12)
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 16th St., NW, Suite 404 Washington, DC 20036
[Original signed by Adria T. Byrdsong]
Office of the Secretary of the Commission Dated at Rockville, Maryland, this 10th day of June 2004