ML042440249

Blue Ridge Environmental Defense Leagues Request for Need-to-Know Determination

ML042440249
Person / Time
Site:	Catawba
Issue date:	08/26/2004
From:	Curran D Blue Ridge Environmental Defense League, Harmon, Curran, Harmon, Curran, Spielberg & Eisenberg, LLP
To:	Atomic Safety and Licensing Board Panel
Byrdsong A T
References
50-413-OLA, 50-414-OLA, ASLBP 03-815-03-OLA, RAS 8382
Download: ML042440249 (6)

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August 26, 2004 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of DOCKETED Docket No's. 50-413-OLA, USNRC DUKE ENERGY CORPORATION 50-414-OLA August 27, 2004 (2:51 PM)

(Catawba Nuclear Station, Units I and 2)

OFFICE OF SECRETARY RULEMAKINGS AND ADJUDICATIONS STAFF BLUE RIDGE ENVIRONMENTAL DEFENSE LEAGUE'S REQUEST FOR NEED-TO-KNOW DETERMINATION Pursuant to 10 C.F.R. § 2.905(b)(1) and (f), Blue Ridge Enviromnental Defense League

("BREDL") hereby requests that the Atomic Safety and Licensing Board make a need-to-know determination with respect to two Nuclear Regulatory Commission ("NRC") guidance documents referenced in a letter from Michael F. Weber, Director, NRC Division of Fuel Cycle Safety and Safeguards, to Peter Hastings, Duke Engineering and Services Inc. (March 13, 2000)

(hereinafter "Weber Letter"). A copy of the letter is attached. According to counsel for the NRC Staff, these documents contain classified National Security Information, for which a need-to-know determination must be made by the ASLB.

Factual Background The Weber letter identifies two NRC guidance documents for the design basis threat

("DBT") for theft or diversion and the DBT for radiological sabotage that are "to be used in the design of the mixed oxide fuel fabrication facility (MOX FFF) with respect to safeguards and security." The documents are entitled "Design Basis Threat for Theft or Diversion Guidance" and "Design Basis Threat for Radiological Sabotage Guidance." Both documents are designated "confidential."

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By letter dated August 3, 2004, counsel for BREDL requested counsel for the NRC Staff to make a need-to-know determination with respect to these two NRC guidance documents.

Letter from Diane Curran to Antonio Fernandez re: Discovery in MOX LTA Proceeding. Mr.

FernAndez responded that the guidance documents contain classified National Security Information, and therefore BREDL must request access to the documents through the ASLB.

Letter from Antonio Ferndndez to Diane Curran and Mark J. Wetterhahn re: In the Matter of Duke Energy Corporation (Catawba Nuclear Station, Units 1 and 2), Docket Nos. 50-413 OLA, 50-414-OLA (August 19,2004). Therefore, BREDL has filed the instant request for a need-to-know determination.

BREDL Has a Need-to-Know With Respect to the Requested Documents BREDL has a need-to-know with respect to the requested documents because they appear to constitute generic NRC guidance for compliance with NRC regulations for security of its licensed facilities, including protection against both theft and sabotage. As such, they not only illustrate the NRC Staff's view of how to comply with NRC regulations, but are given "considerable weight" in NRC adjudicatory proceedings. Consumers Power Co. (Big Rock Point Nuclear Plant), ALAB-725,17 NRC 562,568 and n.10 (1983). Moreover, in the absence of other evidence, adherence to regulatory guidance may be deemed sufficient to demonstrate compliance with NRC regulatory requirements. Metropolitan Edison, Co. (Three Mile Island Nuclear Station, Unit No. 1), ALAB-698, 16 NRC 1290, 1298-99 (1982), rev'd in part on other grounds, CLI-83-22,18 NRC 299 (1983). See also Curators of the University of Missouri, CLI-95-8, 41 NRC 386,397-98 (1995) (a licensee may rely on NUREGs and Regulatory Guides to demonstrate compliance with NRC regulations.) Therefore, it is appropriate and necessary for BREDL to evaluate whether Duke's Security Plan Submittal complies with this guidance.

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During oral discussions before the ASLB, the relevance of these guidance documents has been questioned based on the suggestion that they may have been devised especially for the MOX FFF. While this cannot be determined without examining the documents, the general nature of the titles of the documents indicates that they are generic rather than specific to any particular plant. In any event, even if the guidance documents were developed specifically for the MOX FFF, they are likely to contain relevant guidance with respect to other facilities possessing Category I quantities of strategic special nuclear material, including the Catawba nuclear power plant once it receives the MOX LTAs. It is likely that the characteristics of the adversary who would attack or attempt to steal SSNM from the MOX FFF are similar if not identical to the characteristics of an adversary who would attack or attempt to steal SSNM from the Catawba nuclear power plant.

Therefore, for the foregoing reasons, BREDL requests the ASLB to make a positive need-to-know determination with respect to the requested NRC guidance documents. BREDL requests that access to the documents be provided to BREDL's counsel and expert witness, Diane Curran and Dr. Edwin S. Lyman. Both Ms. Curran and Dr. Lyman possess Level L security clearances.

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(harmoncurran.com August 26, 2004 3

CERTIFICATE OF SERVICE I hereby certify that on August 26, 2004, copies of Blue Ridge Environmental Defense League's Request for Need-to-Know Determination 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 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: slu@nr&.gov axf2@nrc.gov, mjb5@nrc.gov Mary Olson Southeast Office, Nuclear Information and Resource Service P.O Box 7586 Asheville, NC 28802 E-mail: nirs. se@rindspring.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: lfVaughn@duke-energy.com Janet Marsh Zeller, Executive Director Blue Ridge Environmental Defense League P.O. Box 88 Glendale Springs, NC 28629 E-mail: BREDL@skvbest. com

2 David A. Repka, Esq.

Anne W. Cottingham, Esq.

Mark J. Wetterhahn, Esq.

Winston & Strawn, LLP 1400 L Street, N.W.

Washington, D.C. 20005-3502 E-mail: drepka@winston. com acotting@winston.com rnwetterhahn@winston.corn 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@nfc. gov (U)

Diane Curran

~~*I I.,,NYTED STATES NUCLEAR REGULATORY COMMISSION WASHINGTON. D.C. 2g55-COO

• CONFIDESTIAL

• march 13, 2000 Duke Enginoerin9 & Services, Inc.

ATTN: Mr. Peter Hastings P. O. Box 20091 Charlotte, NC 28202

SUBJECT:

DESIGN BASIS THREAT GUIDANCE APPLICABLE TO THE MIXED OXIDE FUEL FABRICATION FACILITY

Dear Wr. Hastings:

Enclosed are tho U.S. Nuclear Regulatory Commission's (NRC) guidance documents for the design basis throat (DST) for theft or diversion and the DBT for radiological sabotage to be used in the design of the mixed oxide fuel fabrication facility (MOX FFF) with respect to safeguards and security.

Both documents are classified as confidential and should be treated acordingly.

If you have any questions, please call the MOX FFF Project Manager, Mr. Andrew Persinko, at (301) 415-6522, Sincerely, Michael F. Wobor, Director Division of Fuel Cycle Safety and Safeguards Office of Nuclear Material Saolty and Safeguards Docket: 70.3098

Enclosures:

1) Design Basis Threat For Theft or Diversion Guidance (confidential)

2) Design Basis Threat For Radiological Sabotage Guidance (confidential)

Upon removal of Enclosure, this document is not classified.

CONFIDENTIAL