ML042180240

Duke Energy Corporation'S Position Regarding Process and Schedule for Completion of Consideration of Security Contention 5

ML042180240
Person / Time
Site:	Catawba
Issue date:	07/30/2004
From:	Wetterhahn M Duke Energy Corp, Winston & Strawn, LLP
To:	Atomic Safety and Licensing Board Panel
Byrdsong A T
References
50-413-OLA, 50-414-OLA, ASLBP 03-815-03-OLA, RAS 8226
Download: ML042180240 (6)

Text

7 July 30, 2004 DOCKET ED UNITED STATES OF AMERICA USNRC NUCLEAR REGULATORY COMMISSION August 4, 2004 (2:37PM)

BEFORE THE ATOMIC SAFETY AND LICENSING BOARD OFFICE OF SECRETARY RULEMAKINGS AND ADJUDICATIONS STAFF In the Matter of: )

DUKE ENERGY CORPORATION

) ~Docket Nos. 50-413-OLA 50-414-OLA (Catawba Nuclear Station, )

Units 1 and 2) )

DUKE ENERGY CORPORATION'S POSITION REGARDING PROCESS AND SCHEDULE FOR COMPLETION OF CONSIDERATION OF SECURITY CONTENTION 5 INTRODUCTION This pleading is being filed by Duke Energy Corporation ("Duke") in response to a request of the Atomic Safety and Licensing Board ("Licensing Board") during a conference call held on July 28, 2004, as confirmed by an Order of the same date. That telephone call was held in anticipation of the issuance of a decision by the Nuclear Regulatory Commission ("NRC" or "Commission") on the appeal by the NRC Staff of the Licensing Board's finding that Dr.

Edwin Lyman, consultant to Intervenor Blue Ridge Environmental Defense League ("BREDL"),

is an expert in security matters related to Security Contention 5. On July 29, 2004, the Commission issued a Memorandum and Order' upholding the Licensing Board's ruling and dissolving the housekeeping stay that it had issued. The Licensing Board requested that the parties identify the matters presently before it implicated by this ruling and its impact on the I Duke Energy Corp. (Catawba Nuclear Station, Units 1 and 2), CLI-04-21, NRC (July 29, 2004).

ern pili-scy.o,7 SEcY-Ob

existing schedule leading to a hearing on September 8-9, 2004. The Board requested that the parties file their view of a preliminary course of action in light of the Commission's ruling for purposes of discussion during an August 3, 2004 conference and at the oral argument scheduled for August 10, 2004.

DISCUSSION As a result of the ruling of the Commission, Duke submits that the following matters need to be addressed at the August 3rd conference call and August 10'h oral argument:

1. The impact on pending discovery requests of BREDL's July 8, 2004 letter to the Licensing Board stating that it will not seek to compel production of Duke's security plan for Catawba. It has been perceived by the Commission that BREDL "has withdrawn the bulk of its earlier document request." CLI-04-21, slip op. at 7, n.22.

2. The argument on the following motions to compel must be completed at the August 10, 2004 oral argument:

a. BREDL's motion to compel against the NRC Staff

b. NRC Staff's motion to compel against BREDL

c. Duke's motion to compel against BREDL

3. A schedule for the NRC Staff to respond to Duke's request for a "need-to-know" determination on a number of Safeguards Information documents.

4. A schedule for a Duke "need-to-know" determination on any Duke documents not ruled on by NRC Staff.

5. The process for BREDL to contest "need-to-know" determination made by NRC Staff or Duke.

6. The process for Duke to contest "need-to-know" determinations made by Staff.

2.

7. The process for NRC Staff to contest "need-to-know" determinations by Duke.

SCHEDULE MILESTONES Duke does not believe it is possible before the August 3, 2004 conference call to propose a definitive schedule for the completion of the remaining actions leading to a hearing on Security Contention 5.2 However, it is clear that the following milestones need to be achieved.

These milestones are not necessarily sequential and may be performed in parallel. It is Duke's position that the security portion of the hearing should proceed as presently set, leading to a hearing on September 8-9, 2004 (or as soon thereafter as possible).

1. Oral argument [set for August 10, 2004]

2. Completion of "need-to-know" determination by Staff and Duke

3. Filing of objections on "need-to-know" determinations by BREDL, Duke and NRC Staff

4. Response of other parties to objections to "need-to-know" determination

5. Decision of Board on pending discovery matters, including "need-to-know" determinations

6. Responses to initial discovery requests in accordance with Board decision

7. Second round of discovery begins

8. Start of opportunity for depositions of experts

9. Objections to second round of discovery

10. Oral argument on objections to second round of discovery

11. Responses to second round of discovery

12. Motions to compel second round of discovery 2 For example, the Staff has not yet determined its schedule for completing its need-to-know evaluation.

3

13. Last day for depositions

14. Oral argument on second motions to compel

15. Completion of discovery

16. Prefiled testimony filed

17. Rebuttal testimony filed

18. Hearing Respectfully submitted, AV DaviA A k Mark J. Wetterhahn WINSTON & STRAWN, LLP 1400 L Street, NW Washington, D.C. 20005-3502 Timika Shafeek-Horton DUKE ENERGY CORPORATION P.O. Box 1006 Mail Code: ECI1IX-1128 Charlotte, N.C. 28201-1006 ATTORNEYS FOR DUKE ENERGY CORPORATION Dated in Washington, District of Columbia This 30th day of July, 2004 4

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 "Duke Energy Corporation's Position Regarding Process and Schedule for Completion of Consideration of Security Contention 5" in the captioned proceeding have been served on the following by deposit in the United States mail, first class, this 30th day of July, 2004. Additional e-mail service, designated by *, has been made this same day, as shown below.

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: AMY(nrc.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 Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555

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: dcurraneharmoncurran.com)

(e-mail: axf2(nrc.gov)

(e-mail: mjb5(nrc.gov)

Mark J. Wetterhahn Counsel for Duke Energy Corporation 2

DC:367244.1