ML042030177
| ML042030177 | |
| Person / Time | |
|---|---|
| Site: | Catawba  |
| Issue date: | 07/13/2004 |
| From: | Curran D Blue Ridge Environmental Defense League, Harmon, Curran, Harmon, Curran, Spielberg & Eisenberg, LLP |
| To: | NRC/OCM |
| Byrdsong A T | |
| References | |
| 50-413-OLA, 50-414-OLA, ASLBP 03-815-03-OLA, RAS 8178 | |
| Download: ML042030177 (5) | |
Text
PC July 13, 2004 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of Docket No's. 50-413-OLA, DUKE ENERGY CORPORATION 50-414-OLA (Catawba Nuclear Station, Units 1 and 2)
BLUE RIDGE ENVIRONMENTAL DEFENSE LEAGUE'S REPLY TO DUKE ENERGY CORPORATION'S RESPONSE TO NRC STAFF PETITION FOR REVIEW OF ASLB RULING ON BREDL SECURITY EXPERT QUALIFICATIONS Blue Ridge Environmental Defense League ("BREDL") hereby replies to Duke Energy Corporation's Response to the NRC Staffs Appeal of the Licensing Board's Finding that Dr. Edwin S. Lyman is an Expert in Nuclear Power Plant Security (July 9, 2004) (hereinafter "Duke Response"). Duke fails to demonstrate that the U.S. Nuclear Regulatory Commission's ("NRC's" or "Commission's") petition should be granted.
Duke's principal argument is that the Atomic Safety and Licensing Board
("ASLB") erred by basing its ruling in part on Dr. Lyman's testimony regarding the content of various of his publications, without requiring BREDL to place those publications in the record. Duke Response at 5. At the outset, this argument must be rejected because it was not made before the ASLB.' Sequoyah Fuels Corporation (Gore, Oklahoma Site), CLI-97-13, 46 NRC 195, 221 (1997); Commonvealth Edison Co. (Zion Nuclear Power Station, Units I and 2), CLI-99-4, 49 NRC 185, 194 (1999). In any event, Duke does not cite any authority, nor is BREDL aware of any, for the proposition that an See transcript of June 25, 2004, oral argument at 1970, in which the ASLB asked if any party objected to proceeding with voir dire, and heard no objection.
I-A'lp /4Ce= 5 C Y-e/
DOCKETED
July 20, 2004 (10:39AM)
OFFICE OF SECRETARY
RULEMAKINGS AND
ADJUDICATIONS STAFF
I expert's testimony regarding the content of his publications is insufficient to support a finding that he is qualified as an expert witness.
Duke also argues that BREDL's examination of Dr. Lyman shows "at most" that Dr. Lyman has general background knowledge regarding security policy matters. Duke Response at 6. In making this argument, Duke simply disregards the details provided by Dr. Lyman and recited by the ASLB in LBP-04-13, regarding his extensive experience with analysis of nuclear security issues. These details show that Dr. Lyman's expertise goes far beyond the policy behind nuclear security to the details of actual security measures. Given his high level of experience, it is not necessary for Dr. Lyman to have reviewed or prepared a security plan in order to provide a cogent analysis of the deficiencies in Duke's plan. In fact, BREDL's contentions themselves, which were prepared by Dr. Lyman, show that Dr. Lyman is capable of evaluating the adequacy of a security plan against NRC security regulations and guidance. Duke's mere disagreement with the ASLB does not constitute sufficient grounds for disturbing the ASLB's well-reasoned finding that Dr. Lyman has:
the "technical competence necessary to evaluate [relevant portions of a nuclear plant security] plan," and constitute "extensive training and experience" in fields that are closely related to nuclear plant security so as to enable him to "assess overall plant security with an appreciation for its interrelated aspects," as required, respectively...
Id., slip op. at 5-6.
In short, the Commission should decline Duke's invitation to "second-guess" a "plausible" ASLB decision. Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant), CLI-01-11, 53 NRC 370, 382 (2001).
2
Respectfully submitted, Diane Curran Harmon, Curran, Spielberg, & Eisenberg, L.L.P.
1726 M Street N.W., Suite 600 Washington, D.C. 20036 202/328-3500 e-mail: dcurran(a).harmoncurran.com July 13, 2004 3
CERTIFICATE OF SERVICE I hereby certify that on July 13, copies of the foregoing BLUE RIDGE ENVIRONMENTAL DEFENSE LEAGUE'S REPLY TO DUKE ENERGY CORPORATION'S RESPONSE TO NRC STAFF PETITION FOR REVIEW OF ASLB RULING ON BREDL SECURITY EXPERT QUALIFICATIONS were served on the following by e-mail and/or first-class mail, as indicated below:
Ann Marshall Young, Chair Administrative Judge Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Mail Stop: T-3F23 Washington, D.C. 20555 E-mail: AMY@nrc. gov Anthony J. Baratta Administrative Judge Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Mail Stop: T-3F23 Washington, D.C. 20555 E-mail: AJB5@nrc. gov Office of Commission Appellate Adjudication U.S. Nuclear Regulatory Commission Mail Stop: 0-16C1 Washington, D.C. 20555 Thomas S. Elleman Administrative Judge Atomic Safety and Licensing Board 4760 East Country Villa Drive Tucson, AZ 85718 E-mail: elleman~eos.ncsu.edu Office of the Secretary (original and two copies)
ATTN: Docketing and Service U.S. Nuclear Regulatory Commission Mail Stop: 0-16C1 Washington, D.C. 20555 E-mail: HEARINGDOCKET@nrc. gov Susan L. Uttal, Esq.
Antonio Fernandez, Esq.
Margaret J. Bupp, Esq.
Office of the General Counsel Mail Stop 15 D21 U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 E-mail: sluGnrc. gov axf2@nrc. go, mj benrc. gov Mary Olson Southeast Office, Nuclear Information and Resource Service P.O Box 7586 Asheville, NC 28802 E-mail: nirs. se@mindspring. com Lisa F. Vaughn, Esq.
Timika Shafeek-Horton, Esq.
Legal Dept. (PBO5E)
Duke Energy Corporation 526 South Church Street (ECI IX)
Charlotte, NC 28201-1006 E-mail: l fVaughn@duke-energy. cor Janet Marsh Zeller, Executive Director Blue Ridge Environmental Defense League P.O. Box 88 Glendale Springs, NC 28629 E-mail: BREDL@skybest. com
2 David A. Repka, Esq.
Anne W. Cottingham, Esq.
Mark J. Wetterhahan, 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 Nils J. Diaz, Chairman Edward McGaffigan, Jr., Commissioner U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 RAM(inrc.gov E-mail: EXM(ainrc.gov Jeffrey S. Merrifield, Commissioner U.S. Nuclear Regulatory Commission Washington, DC 20555 JMER(nrc.gov Diane Curran