ML042030173
| ML042030173 | |
| Person / Time | |
|---|---|
| Site: | Catawba  |
| Issue date: | 07/19/2004 |
| From: | Bupp M, Fernandez A NRC/OGC |
| To: | NRC/OCM |
| Byrdsong A T | |
| References | |
| 50-413-OLA, 50-414-OLA, ASLBP 03-815-03-OLA, RAS 8182 | |
| Download: ML042030173 (8) | |
Text
1 Duke Energy Corporations Response to the NRC Staffs Appeal of the Licensing Boards Finding that Dr. Edwin Lyman is an Expert in Nuclear Power Plant Security (Jul. 9,2004) (Duke Response).
2 Blue Ridge Environmental Defense Leagues Opposition to NRC Staff Petition for Review of ASLB Ruling on BREDL Security Expert Qualifications and Opposition to Motion for Stay (Jul.
9, 2004) (BREDL Response).
RAS 8182 July 19, 2004 DOCKETED 07/20/04 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of
)
)
DUKE ENERGY CORPORATION
)
Docket Nos. 50-413-OLA
)
50-414-OLA
)
(Catawba Nuclear Station
)
Units 1 and 2)
)
NRC STAFFS MOTION FOR LEAVE TO REPLY TO BREDLS OPPOSITION TO NRC STAFFS PETITION FOR REVIEW REGARGDING BREDLS SECURITY EXPERT INTRODUCTION Pursuant to 10 C.F.R. § 2.730, the staff of the Nuclear Regulatory Commission (Staff) hereby moves that the Commission grant the Staff leave to file the accompanying reply to the Blue Ridge Environmental Defense Leagues (BREDL) opposition to the Staffs Petition for Review of the Licensing Boards Ruling Related to BREDLs Proffered Security Expert (Petition for Review).
The Staff filed its Petition for Review on June 30, 2004. The Commission provided Duke Energy Corporation (Duke)1 and BREDL2 an opportunity to respond to the Staffs Petition for Review no later than July 9, 2004. Duke Energy Corp. (Catawba Nuclear Station, Units 1 &2), Docket Nos.
50-413-OLA & 50-414-OLA (Jul. 1, 2004) (hereinafter Commission Order Granting Stay). BREDL 3 Blue Ridge Environmental Defense Leagues Reply to Duke Energy Corporations Response to NRC Staff Petition for Review of ASLB Ruling on BREDL Security Expert Qualifications (Jul. 13, 2004) (BREDL Reply to Duke).
was also permitted to file a response to Dukes Response by July 13, 2004.3 Id. The Staff was not afforded an opportunity to file a response. Id.
DISCUSSION The Staff recognizes that, as the petitioning party, it has no right to reply unless granted by the Commission. 10 C.F.R. § 2.786(b)(3). However, the Commission may grant leave to file a reply which has not been specifically authorized by the Commission if the reply is accompanied by a motion for leave to file such a reply which sets forth good reasons why the substance of the submission could not have been furnished to [the Commission] in a more timely fashion.
Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-115, 6 AEC 257 (1973). Such replies must also be limited to the matters raised on appeal and included in the parties previous filings.
See Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-582, 11 NRC 239, 243-44 (1980).
In the instant case, the accompanying reply is limited to a single issue raised in BREDLs Response, namely, whether the Staff waived its right to object to BREDLs experts qualifications.
BREDL Response at 7. The Staff did not have the opportunity to address this issue in its Petition for Review because BREDL raised it for the first time in its Response, although BREDL had the opportunity to raise the issue before the Board in connection with oral arguments on the Staffs need-to-know determination and the voir dire of Dr. Lyman conducted by the parties and the Board.
See, e.g., Tr. at 1970 (assenting to voir dire of Dr. Lyman). Therefore, the Staff has good cause for filing the attached reply.
CONCLUSION For the foregoing reasons, the Staff requests that the Commission grant the Staff leave to file the accompanying reply.
Respectfully submitted,
/RA/
Margaret J. Bupp Counsel for NRC staff Dated in Rockville, Maryland this 19th day of July, 2004
July 19, 2004 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of
)
)
DUKE ENERGY CORPORATION
)
Docket Nos. 50-413-OLA, 50-414-OLA
)
(Catawba Nuclear Station, Units 1 and 2)
)
NRC STAFFS REPLY TO BREDLS RESPONSE TO THE STAFFS PETITION FOR REVIEW On July 9, 2004, the Blue Ridge Environmental Defense League (BREDL or Intervenor) filed a response to the NRC Staffs Petition for Review of the Licensing Board's Ruling Related to BREDL's Proffered Security Expert (January 30, 2004). See [BREDLs] Opposition to NRC Staff Petition for Review of ASLB Ruling on BREDL Security Expert Qualifications and Opposition to Motion for Stay (July 9, 2004) (hereinafter BREDL Response). The Staff hereby replies to BREDLs Response.
In its Response, BREDL, for the first time in this proceeding, asserted that the Staffs challenge of Dr. Lymans expertise was simply too late and the Staffs argument to this effect had been waived. Id. at 7. It is well established Commission precedent that a party may not seek Commission review of an issue that it has not previously raised before the licensing board below.
See, e.g., Duke Power Co. (Catawba Nuclear Station. Units 1 and 2), ALAB-813, 22 NRC 59, 83 (1985); Puerto Rico Electric Power Authority, (North Coast Nuclear Power Plant, Unit 1), ALAB-648, 14 NRC 34, 37 (1981); Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-582, 11 NRC 239, 242 (1980). Contrary to BREDLs assertion, in the instant case, it is BREDL who waived any right to challenge the timing of the Staffs objection regarding Dr. Lymans expertise. Until filing its Response with the Commission, BREDL failed to assert that the Staff waived its objection to Dr. Lymans expertise; BREDL failed to preserve any objection to Dr. Lymans voir dire or the outcome of the voir dire; and specifically consented (without objection based on waiver or any other basis) to the Boards suggestion to examine Dr.
Lyman for the purpose of determining whether he should be recognized as a security expert at this time. Tr. 1970 (in response to the Boards question of whether an examination of Dr. Lymans qualifications could be conducted, counsel for BREDL stated Yes, that would be fine with BREDL.). Consequently, BREDLs argument that the Staff waived its right to challenge Dr.
Lymans expertise may not be considered now before the Commission.
Moreover, the effect of BREDLs waiver argument is that the Staff would be obligated to allow Dr. Lyman access to safeguards information merely because it has done so in the past.
See BREDLs Response at 7. BREDL offers no authority for this view. Each need-to-know determination is a separate and distinct legal and factual conclusion that must be made based on the record, in toto, as it exists when the need-to-know determination is made. In the instant case, the issue to be resolved by the Commission, contrary to BREDLs assertion, is not whether the Staff had previously granted Dr. Lyman access to safeguards information. Indeed, the Staffs grant of access to safeguards information in the past is not dispositive of whether specific additional safeguards information should be provided to Dr. Lyman at this time. The issue before the Commission is whether the record, as it exists now, including Dr. Lymans voir dire examination, establishes that he is an expert in nuclear reactor security. A careful review of the record reflects that Dr. Lyman is not an expert in security and should not be given further access to safeguards information. See Staffs Petition for Review at 5-6.
In sum, BREDLs argument that the Staffs petition for review should be denied because it is untimely is without merit. As discussed earlier, BREDL failed to raise this issue below, as required. Additionally, BREDLs argument, without legal basis, effectively asks the Commission to generically determine need-to-know based solely on the fact that Dr. Lyman had been provided safeguards information at an earlier stage of this proceeding and without regard to all pertinent information in the record as it exists now. Therefore, the Commission should grant the Staffs Petition and reverse the Boards ruling.
Respectfully submitted,
/RA/
Antonio Fernández Counsel for NRC staff Dated at Rockville, Maryland this 19th day of July, 2004.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE 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 NRC STAFFS MOTION FOR LEAVE TO REPLY TO BREDLS OPPOSITION TO NRC STAFFS PETITION FOR REVIEW REGARDING BREDLS SECURITY EXPERT and NRC STAFFS REPLY TO BREDLS OPPOSITION TO THE STAFFS PETITION FOR REVIEW 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 19th day of July, 2004.
Ann Marshall Young, Chair**
- Administrative Judge Atomic Safety and Licensing Board Panel Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (E-mail: amy@nrc.gov)
Anthony J. Baratta**
- Administrative Judge Atomic Safety and Licensing Board Panel Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (E-mail: ajb5@nrc.gov)
Thomas S. Elleman**
- Administrative Judge Atomic Safety and Licensing Board Panel 5207 Creedmoor Rd. #101 Raleigh, NC 27612 (E-mail: elleman@eos.ncsu.edu)
Office of the Secretary**
- ATTN: Docketing and Service U.S. Nuclear Regulatory Commission Mail Stop: O-16C1 Washington, D.C. 20555 (E-mail: HEARINGDOCKET@nrc.gov)
Office of Commission Appellate Adjudication*
Mail Stop: O-16C1 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Atomic Safety and Licensing Board Panel Adjudicatory File*
U.S. Nuclear Regulatory Commission Mail Stop: O-16C1 Washington, DC 20555 Diane Curran, Esq.**
Harmon, Curran, Spielberg
& Eisenberg, L.L.P.
1726 M Street, N.W., Suite 600 Washington, DC 20036 (E-mail: dcurran@harmoncurran.com)
Lisa F. Vaughn, Esq.**
Timika Shafeek-Horton, Esq.**
Legal Department Mail Code - PB05E Duke Energy Corporation 426 S. Church Street (EC11X)
Charlotte, NC 28201-1006 (E-mail: lfVaughn@duke-energy.com tshafeek@duke-energy.com)
David A. Repka, Esq.**
Anne W. Cottingham, Esq.**
Mark Wetterhahn, Esq.**
Winston & Strawn LLP 1400 L Street, N.W.
Washington, D.C. 20005-3502 (E-mail: drepka@winston.com acotting@winston.com mwetterhahn@winston.com)
/RA/
Antonio Fernández Counsel for NRC Staff