ML041940467

Letter from Mark J. Wetterhahn to Antonio Fernandez and Susan L. Uttal Requesting That the NRC Staff Make a Need to Know Determination Prior to a Decision on Disclosure of security-related Documents to Bredl

ML041940467
Person / Time
Site:	Catawba
Issue date:	07/02/2004
From:	Wetterhahn M Duke Energy Corp, Winston & Strawn, LLP
To:	Fernandez A, Uttal S NRC/OGC
Byrdsong A T
References
50-413-OLA, 50-414-OLA, ASLBP 03-815-03-OLA, RAS 8092
Download: ML041940467 (4)

Text

051dg, RATEDCORRESPONDENOE WINSTON & STRAWNLLP External Letter 1400 L STREEr, N.W., WASHINGrON DC 20005-3502 202-371-5700 35 W W- D- 200 t4A 381 ft. 333 S. 0- 10 Cl Sb 43 of, - - ItI A V9 9e C Psd I 6.04 VW C I>4 L 006010703 I aaryOO.IY 101 84103 L- A- CA 00071-1843 8at Tac CA 041114894 1204 0G 8IZC190 75 l1e f A no0. L . E- Or COPY 3 1 L58-8000 .1 2209-700 13-8I 5-17CO 406-Goi-Woo 41-22-317-76-75 33-1-53-6"9-2 4-R07-153-10Z6 DOCKETED July 2, 2004 USNRC July 6, 2004 (1:30PM)

OFFICE OF SECRETARY Antonio Fernmndez, Esq. RULEMAKINGS AND Susan L. Uttal, Esq. ADJUDICATIONS STAFF Office of the General Counsel Mail Stop 15 D21 U.S. Nuclear Regulatory Commission 11555 Rockville Pike Rockville, MD 20852 SUBJ: In the Matter of Duke Energy Corporation, Catawba Nuclear Station Units 1 and 2 (Docket Nos. 50-413-OLA, 50-414-OLA)

Dear Ms. Uttal and Mr. Fernmndez:

This letter is a follow up to my June 23, 2004 letter to you on behalf of Duke Energy Corporation ("Duke") relating to "need to know" determinations regarding security-related documents requested by intervenor Blue Ridge Environmental Defense League. As I noted in my previous letter in this proceeding, the Commission has made clear that "need to know" determinations involving protected NRC information, such as documents designated as Safeguards or Classified Information, should be made by the U.S. Nuclear Regulatory Commission Staff:

"[A]s is evident from the text of our regulations, it is appropriate for NRC Staff experts to make the initial 'need to know' decisions.

When a licensee or intervenor disputes those decisions, licensing boards, while exercising their own judgment, should give considerable deference to the Staff's judgments. The Commission has confidence in our Staff, which is well trained and is experienced in NRC licensing and enforcement proceedings, and intimately familiar with both NRC safeguards regulations and the licensing or enforcement matter at hand."'

I See Duke Energy Corp. (Catawba Nuclear Station, Units 1 and 2), CLI-04-06, 59 NRC 62, 75 (2004) (internal citations omitted).

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WINSTON & STRAWN LLP Antonio Femdindez, Esq.

Susan L. Uttal, Esq.

July 2, 2004 Page 2 In responding to Blue Ridge Environmnental Defense League's First Set of Discovery Requests to Duke Energy Corporation Regarding Security Plan Submittal dated June 19, 2004, Duke has identified a number of documents which are designated as Safeguards Information by either Duke or the NRC Staff or which contain sensitive security information some of which could be utilized to determine elements of information designated by the NRC as Safeguards Information, e.g., in security orders.

Duke has prepared a table, as Attachment 1 to Duke Energy Corporation's Response to Blue Ridge Environmental Defense League's First Document Production Request on BREDL Security Contention 5, which lists security-related documents responsive to BREDL's various requests. With regard to Document Nos. 12, 13, 26, 28, 30, 51, 52, 57-65, 67-76, and 77, of the table, Duke requests that the NRC Staff make a "need to know" determination prior to a decision on disclosure of such information to BREDL. It is Duke's position that a "need to know" does not exist to permit access by BREDL's counsel or consultant to these documents.

Documents for which a need to know determination is requested that are not already in the possession of the NRC will be sent under separate cover.

If you have any questions or would like to discuss this matter further, please let me know.

Very truly yours, AAVd bAI Mark J. Wetterhahn Counsel for Duke Energy Corporation cc: Service List

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 (Catawba Nuclear Station, ) 50-414-OLA Units 1 and 2) )

)

)

CERTIFICATE OF SERVICE I hereby certify that copies of the documents listed below have been served on the following in the captioned proceeding by Federal Express, this 2nd day of July, 2004. Alternative service by hand delivery, as indicated by **, has also been made this 2nd day of July, 2004.

(1) "Duke Energy Corporation's Answers to Blue Ridge Environmental Defense League's First Set of Interrogatories on BREDL Security Contention 5" (SAFEGUARDS);

(2) "Duke Energy Corporation's Response to Blue Ridge Environmental Defense League's First Document Production Request on BREDL Security Contention 5;"

(3) "Status of Duke Energy Corporation Responses and Objections to Blue Ridge Environmental Defense League's Interrogatories and Document Production Requests on Security Contention 5;"

(4) July 2, 2004 letter to Antonio Fernandez, Esq., and Susan Uttal, Esq., from Mark J. Wetterhahn.

(5) "Duke Energy Corporation's Response to the NRC Staffs First Set Of Interrogatories and Request for Production of Documents to Duke Energy Corporation On The Admitted Security Contention."

Ann Marshall Young, Chairman Anthony J. Baratta Administrative Judge Administrative Judge Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 (e-mail: AMYnrc.gov) (e-mail: AJB5@nrc.gov)

Thomas S. Elleman Office of the Secretary Administrative Judge U.S. Nuclear Regulatory Commission 5207 Creedmoor Road, #101 Washington, DC 20555 Raleigh, NC 27612 Attn: Rulemakings and Adjudications Staff (e-mail: elleman(eos.ncsu.edu) (original + two copies)

(e-mail: HEARINGDOCKET~nrc.gov)

Office of Commission Appellate Adjudicatory File Adjudication Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Comnmission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 (Non-Safeguards Documents & Certificate (Non-Safeguards Documents & Certificate of Service only) of Service only)

Susan L. Uttal, Esq. Diane Curran*

• Antonio Fernandez, Esq. Harmon, Curran, Spielberg &

Margaret J. Bupp Eisenberg, LLP Office of the General Counsel 1726 M Street, N.W.

U.S. Nuclear Regulatory Commission Suite 600 Washington, DC 20555 Washington, DC 20036 (e-mail: slu.nrc.gov) (e-mail: dcurran(¢harmoncurran.com)

(e-mail: axf2£nrc.gov)

(e-mail: mjb5@nrc.gov)

Mark J. Wetterhahn Counsel for Duke Energy Corporation 2