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Category:Legal-Brief
MONTHYEARML0513902952005-05-0909 May 2005
Duke Energy Corporation'S Reply to Blue Ridge Environmental Defense League'S Brief in Response to CLI-05-10
ML0513103542005-05-0202 May 2005
Blue Ridge Environmental Defense League'S Brief in Response to CLI-05-10 Regarding Commission Review of LBP-05-10
ML0508103272005-03-21021 March 2005
Catawba - NRC Staff Response to Blue Ridge Environmental Defense League'S Petition for Review of No Significant Hazards Consideration Determination and Request for Immediate Order
ML0508203442005-03-16016 March 2005
Duke Energy Corporation'S Opposition to Petition for Expedited Discretionary Review of No Significant Hazards Consideration Determination and Request for Immediate Order
ML0507501942005-03-0909 March 2005
Blue Ridge Environmental Defense League'S Petition for Expedited Discretionary Review of No Significant Hazards Consideration Determination and Request for Immediate Order That Duke May Not Accept Plutonium MOX Fuel Shipment, with Attachmen
ML0431401742004-10-29029 October 2004
Blue Ridge Environmental Defense League'S Appeal of NRC Staff'S October 27, 2004, Need-to-know Determination
ML0423006032004-08-0606 August 2004
Blue Ridge Environmental Defense League'S Appeal of Duke Energy Corporation'S August 6, 2004 Need-to-know Determination
ML0420301772004-07-13013 July 2004
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
ML0420203822004-07-0909 July 2004
Blue Ridge Environmental Defense League'S Opposition to NRC Staff Petition for Review of ASLB Ruling on Bredl Security Expert Qualifications and Opposition to Motion for Stay
ML0414005112004-05-12012 May 2004
Duke Energy Corporation'S Reply to Blue Ridge Environmental Defense League'S Brief on Certified Questions
ML0414004792004-05-12012 May 2004
Blue Ridge Environmental Defense League'S Reply Brief in Response to CLI-04-11
ML0413406162004-05-12012 May 2004
Catawba - NRC Staff'S Reply to the Blue Ridge Environmental Defense League'S Response to the Commission'S April 21, 2004 Order
ML0413401392004-05-0505 May 2004
Response of Duke Energy Corporation to the Questions Certified to the Commission by Memorandum and Order (Ruling on Security-Related Contentions)
ML0412704882004-05-0505 May 2004
Catawba - NRC Staff'S Response to the Commission'S April 21, 2004 Order Relating to Certified Question Regarding Bredl Security Contention 1
ML0413303682004-05-0505 May 2004
Blue Ridge Environmental Defense League'S Brief in Response to CLI-04-11, Regarding Admissibility of Bredl Security Contention 1; and Request for Reconsideration of CLI-04-06
ML0411005292004-04-14014 April 2004
Catawba - Certificate of Service for NRC Staff'S Response to the Blue Ridge Environmental Defense League'S First Set of Discovery Requests to NRC Staff and NRC Staff Brief in Response to the Aslb'S April 8, 2004 Order
ML0411005212004-04-14014 April 2004
Catawba - NRC Staff Brief in Response to the Aslb'S April 8, 2004 Order
ML0409203282004-03-25025 March 2004
Blue Ridge Environmental Defense League'S Response to Duke'S Appeal of LBP-04-04
ML0409201352004-03-25025 March 2004
Catawba - NRC Staff'S Brief in Support of Duke Energy Corporation'S Appeal from Atomic Safety and Licensing Board'S Memorandum and Order LBP-04-04 (Ruling on Standing and Contentions)
ML0408204762004-03-15015 March 2004
Memorandum of Law in Support of Duke Energy Corporation'S Appeal from the Atomic Safety and Licensing Board'S Memorandum and Order LBP-04-04 (Ruling on Standing and Contentions)
ML0408204162004-03-15015 March 2004
Notice of Appeal of Duke Energy Corporation from Atomic Safety and Licensing Board Memorandum and Order LBP-04-04 (Ruling on Standing and Contentions)
ML0405004602004-02-11011 February 2004
Catawba MOX - NRC Staff'S Petition for Review of the Licensing Board'S February 4, 2004 Order Relating to Bredl'S Request to Attend a Closed Meeting
ML0403604542004-01-28028 January 2004
Catawba MOX - NRC Staff Response to Atomic Safety and Licensing Board Request to the Commission Pursuant to 10 C.F.R. 2.904
ML0335704202003-12-19019 December 2003
Catawba - NRC Staff'S Reply to Blue Ridge Environmental Defense League'S Response to Board Questions
ML0335704342003-12-12012 December 2003
Catawba - NRC Staff'S Response to Board'S Question Regarding Executive Order 12114
ML0332405462003-11-14014 November 2003
Duke Energy Corporation'S Opposition to Petition for Review of LBP-03-17
ML0331804812003-11-10010 November 2003
NRC Staff'S Response to (1) Blue Ridge Environmental Defense League'S Supplemental Petition to Intervene and (2) Nuclear Information and Resource Service'S Contentions
ML0331701302003-11-0404 November 2003
Blue Ridge Environmental Defense League'S Petition for Review of LBP-03-17
ML0304401172003-02-12012 February 2003
Mcguire/Catawba - NRC Staff'S Response to Intervenors' Brief Filed Pursuant to Licensing Board Order of February 4, 2003
ML0304101362003-02-0707 February 2003
Mcguire/Catawba - NRC Staff'S Brief in Response to Licensing Board Order of February 4, 2003
ML0208104262002-03-12012 March 2002
Reply of Duke Energy Corporation to Nuclear Information and Resource Service and Blue Ridge Environmental Defense League Briefs in Response to Commission Memorandum and Order CLI-02-06
ML0208502652002-03-12012 March 2002
Nuclear Information and Resource Service Reply Brief Regarding Admissibility of NEPA Issues Relating to Terrorism and Sabotage
ML0212205042002-03-12012 March 2002
Mcguire/Catawba - NRC Staff'S Brief in Reply to Responses to CLI-02-06
ML0207303032002-02-27027 February 2002
Brief of Duke Energy Corporation in Response to Commission Memorandum and Order CLI-02-06
ML0207301562002-02-27027 February 2002
Amicus Brief of Nuclear Energy Institute in Response to the Commission'S Memorandum and Orders Dated February 6, 2002, Regarding the Commission'S Consideration of Potential Intentional Malevolent Acts
ML0205904192002-02-27027 February 2002
Mcguire/Catawba - NRC Staff'S Brief in Response to CLI-02-06
ML0208102992002-02-14014 February 2002
Nirs Response to Appeal Memoranda of Duke Energy and NRC Staff to Atomic Safety Licensing Board January 24, 2002 Ruling on Standing and Contentions
ML0206506302002-02-14014 February 2002
Blue Ridge Environmental Defense League (Bredl) Response to NRC Staff'S Brief in Support of Appeal from LBP-02-04 and Memorandum of Law in Support of Appeal of Duke Energy Corporation from Atomic Safety and Licensing Board Memorandum and Or
ML0205902972002-02-0404 February 2002
Memorandum of Law in Support of Appeal of Duke Energy Corporation from Atomic Safety and Licensing Board Memorandum and Order LBP-02-04 (Ruling on Standing and Contentions)
ML0205901792002-02-0404 February 2002
Notice of Appeal of Duke Energy Corporation from Atomic Safety and Licensing Board Memorandum and Order LBP-02-04 (Ruling on Standing and Contentions)
ML0203800592002-02-0404 February 2002
Certificate of Service for NRC Staff Notice of Appeal of LBP-02-04 and NRC Staff'S Brief in Support of Appeal from LBP-02-04 Granting Intervention and Admission of Contentions
ML0203800552002-02-0404 February 2002
NRC Staff Notice of Appeal of LBP-02-04 Granting Intervention and Admission of Contentions
ML0203800502002-02-0404 February 2002
Mcguire/Catawba - NRC Staff'S Brief in Support of Appeal from LBP-02-04
2005-05-09
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PC --
July 13, 2004 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION DOCKETED BEFORE THE COMMISSION USNRC July 20, 2004 (10:39AM)
In the Matter of Docket No's. 50-413-OLA, OFFICE OF SECRETARY DUKE ENERGY CORPORATION 50-414-OLA RULEMAKINGS AND ADJUDICATIONS STAFF (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/
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. CarolinaPower & 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 Susan L. Uttal, Esq.
Administrative Judge Antonio Fernandez, Esq.
Atomic Safety and Licensing Board Margaret J. Bupp, Esq.
U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop: T-3F23 Mail Stop 15 D21 Washington, D.C. 20555 U.S. Nuclear Regulatory Commission E-mail: AMY@nrc. gov Washington, D.C. 20555-0001 E-mail: sluGnrc. gov axf2@nrc. go, Anthony J. Baratta mj benrc . gov Administrative Judge Atomic Safety and Licensing Board Mary Olson U.S. Nuclear Regulatory Commission Southeast Office, Nuclear Information and Mail Stop: T-3F23 Resource Service Washington, D.C. 20555 P.O Box 7586 E-mail: AJB5@nrc. gov Asheville, NC 28802 E-mail: nirs. se@mindspring. com Office of Commission Appellate Adjudication U.S. Nuclear Regulatory Commission Lisa F. Vaughn, Esq.
Mail Stop: 0-16C1 Timika Shafeek-Horton, Esq.
Washington, D.C. 20555 Legal Dept. (PBO5E)
Duke Energy Corporation Thomas S. Elleman 526 South Church Street (ECI IX)
Administrative Judge Charlotte, NC 28201-1006 Atomic Safety and Licensing Board E-mail: l fVaughn@duke-energy. cor 4760 East Country Villa Drive Tucson, AZ 85718 Janet Marsh Zeller, Executive Director E-mail: elleman~eos.ncsu.edu Blue Ridge Environmental Defense League P.O. Box 88 Office of the Secretary (original and two copies) Glendale Springs, NC 28629 ATTN: Docketing and Service E-mail: BREDL@skybest. com U.S. Nuclear Regulatory Commission Mail Stop: 0-16C1 Washington, D.C. 20555 E-mail: HEARINGDOCKET@nrc. gov
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
