ML042680069
| ML042680069 | |
| Person / Time | |
|---|---|
| Site: | Catawba  |
| Issue date: | 09/17/2004 |
| From: | Repka D 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 8507 | |
| Download: ML042680069 (10) | |
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September 17, 2004 DOCKETED UNITED STATES OF AMERICA USNRC NUCLEAR REGULATORY COMMISSION September 17, 2004 (2:12PM)
BEFORE THE ATOMIC SAFETY AND LICENSING BOARDOFFICE OF SECRETARY RULEMAKINGS AND ADJUDICATIONS STAFF In the Matter of Docket Nos. 50-413-OLA DUKE ENERG Y CORPORATION 5-1-L (Catawba Nucle ar Station, )
Units 1 and 2)
DUKE ENERGY CORPORATION'S OPPOSITION TO BLUE RIDGE ENVIRONMENTAL DEFENSE LEAGUE'S MOTION TO COMPEL PRODUCTION OF THE PROPOSED SECURITY PLAN FOR CATAWBA NUCLEAR STATION I. INTRODUCTION On September 7, 2004, Blue Ridge Environmental Defense League ("BREDL")
filed a motion to compel the Nuclear Regulatory Commission ("NRC" or "Commission") Staff to produce what it termed "Revision 17" of the Catawba Nuclear Station ("Catawba") physical security plan currently under review by the Staff. In actuality, what is being sought is the proposed version of the physical security plan which is responsive to certain post-9/11 Commission orders issued to Duke Energy Corporation ("Duke"). In accordance with those orders, this proposed physical security plan is to be fully effective by October 29, 2004.'
Because of the scope of changes, many of which involve the format, Duke has designated this document as a new plan that will begin with Revision 0. To distinguish this plan from the plan The proposed plan addresses all three Duke nuclear stations. Information related to Oconee and McGuire is clearly not relevant to this proceeding.
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currently in effect (which has 15 revisions and has already been the subject of discovery in this proceeding), the revised plan is referred to herein as the "Proposed Security Plan."
BREDL claims the Proposed Security Plan is relevant to its security contention "and indeed indispensable to the meaningful litigation of [it]."2 BREDL reasons that because Duke "intends to rely for protection of the plutonium MOX fuel on the same security force that is in place to protect the Catawba plant against sabotage, it is crucial that BREDL be given access to the version of the Security Plan that will actually be in effect when plutonium MOX fuel is present at the Catawba site." 3 BREDL reasons that "it is likely that [the Proposed Security Plan] will reflect a larger and/or better equipped security force than Revision 15 of the Security Plan."4 Thus, BREDL concludes that "[i]n evaluating the vulnerability of the Catawba Plant to theft of MOX fuel, it will be essential for BREDL to have a correct understanding of the size of the security force." 5 For the reasons discussed below, Duke opposes the motion to compel.
II. DISCUSSION The Proposed Security Plan has been developed in response to post-September 11, 2001 Commission security initiatives, including two Commission orders directed to Duke for its Catawba Station, the substantive contents of which were determined by the NRC 2 BREDL Motion at 3.
3 Id. at 4.
4 Id.
5 Id. (footnote omitted). BREDL also vaguely asks that if the Licensing Board determines that the Proposed Security Plan should be withheld, the discovery process should be suspended until it is made available to it.
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to be Safeguards Information. 6 In its decision dealing with BREDL's request for these two orders at the contentions pleading stage of this proceeding, the Commission stated that "[t]he current proceeding has nothing to do with the NRC's post-September II general security orders."' It noted that it was not these general security orders, but Duke's MOX-related Security Submittal, that "details the particular security measures that will be taken as a consequence of the presence of the MOX fuel assemblies" at Catawba.8 In reaching its decision, the Commission recited the Staff representation that it would not use the requested Safeguards documents (including the two NRC orders in question) in its planned review of Duke's license amendment application.'
The Proposed Security Plan represents the direct progeny of the post-September 11 general security orders. For reasons similar to those articulated by the Commission in denying BREDL access to the orders, BREDL does not require access to the Proposed Security Plan. In CLI-04-6, after relating that Duke has previously made available to 6 See EA-03-039 and EA-03-086. The Orders, both titled "Order Modifying Licenses" and both issued on April 29, 2003, relate to (1) a revised design basis threat ("DBT") for operating power reactors and (2) compensatory measures related to training enhancements on tactical and firearms proficiency and physical fitness applicable to armed nuclear power plant security force personnel. See 68 Fed. Reg. 24, 517 (May 7, 2003).
Duke Energy Corp. (Catawba Nuclear Station, Units 1 and 2), CLI-04-6, 59 NRC 62, 72 (footnote omitted) (2004).
Catanvba, CLI-04-6, 59 NRC at 72.
9 Id. at 69. Consistent with the orders of the Licensing Board, when there is reliance on a post-September 11 security order, e.g., the Order for Compensatory Measures Related to Access Authorization (EA-02-261), it has been provided to BREDL. The list of documents provided to BREDL by Duke is contained as Attachment 1 to the September 3, 2004 letter to Ms. Diane Curran, counsel for BREDL, from Mark Wetterhahn, counsel for Duke ("Index of Documents"). See Item No. 63 of the Index of Documents.
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BREDL its security enhancements for implementing the MOX fuel license amendment, the Commission found that "[m]ore general security information related to the Catawba plant-at-large - the kind of information in the NRC orders that the Board has ordered disclosed to BREDL - is not, in our judgment, 'necessary' to allow BREDL to participate meaningfully in this license amendment proceeding."'" While the proceeding is now at a different stage, Duke submits that the same conclusion is warranted. Any other conclusion would completely nullify CLI-04-06. As the Commission stated in CLI-04-6, in addressing "need-to-know" at any stage of the proceeding, a distinction must be made between "'wants' and needs.""
Indeed, Duke has already provided BREDL the portion of the Proposed Security Plan dealing specifically with MOX fuel lead assembly security (i.e., the section of the plan that implements the MOX fuel Security Submittal of September 15, 2003).I2 This plan section is substantially unchanged from the MOX security information previously made available to BREDL. Moreover, in response to discovery requests, Duke has supplied BREDL with detailed procedures and drawings which show how the general principles enumerated in the security plan are actually implemented, and which demonstrate in detail how the facility is being protected from sabotage and how the MOX assemblies will be protected from theft.' As counsel for Duke has already recognized on the record, to the extent there are any changes in particular procedures previously provided, or additional procedures on which Duke will rely to address potential theft 10 CLI-04-6, 59 NRC at 72.
11 Id.
12 See Item No. 51 of the Index of Documents, entitled "Appendix G, MOX Interim Security Measures for Proposed Security Plan Format."
13 See, e.g., Index of Documents, Item Nos. 69-79.
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of the MOX fuel lead assemblies, it will fulfill its obligation to supplement its prior responses to discovery." In fact, Duke has already produced drawings which show changes being implemented to effectuate the Proposed Security Plan." The detailed information contained in the drawings and procedures reveals information at a level of detail greater than that in the Proposed Security Plan. The proposed plan itself will be under NRC Staff review for an indeterminate period of time and it is conjecture to assume the plan will be approved in it's current form. To comply with the Commission's security order, the detailed procedures to reflect plan changes certainly will be in place and in use on October 29, 2004, regardless of Staff action as the Proposed Security Plan.
BREDL also has the opportunity, during the upcoming second round of discovery, to request by way of interrogatory, deposition or otherwise, any information concerning the detailed security actions associated with MOX fuel it believes it needs to develop its case. Thus, in the context of all of the information provided, or agreed to be provided, there is no demonstrable and indispensable "need" for the Proposed Security Plan."6 When viewed in context, the Proposed Security Plan would at most provide some small incremental context for the actions Duke will take to protect the MOX fuel from theft during receipt and processing prior 14 See Tr. 3 150-51 (Sept. 1, 2004).
15 See Index of Documents, Item No. 80.
16 While it wishes to preserve its argument that the appropriate need-to-know test is necessity/indispensability even at this stage of the proceeding, Duke believes the conclusion that there is no need is true even if the necessity/indispensability test is equated to the general discovery standard at this stage of the proceeding.
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to irradiation in the reactor. In this vein, BREDL has not demonstrated a real need for the document, as opposed to a mere desire."
Even at this stage of the proceeding, the Licensing Board must balance BREDL's desire for the document against the Commission's policy of limiting access to Safeguards Information. In this proceeding, the Commission has stated:
As a policy matter, the Commission has a strong interest in limiting access to safeguards and security information. We must limit distribution of safeguards information to those having an actual and specific, rather than a perceived, need to know."
The release of the Proposed Security Plan would compromise information from the Safeguards Information attachment of the NRC's April 29, 2003 generic DBT Order that is not directly related to the potential for theft of MOX fuel."9 Release of the plan would also tend to reveal elements of security at other Duke facilities as well as security strategy at other nuclear power plants in the United States. For these sound policy reasons, the motion to compel should be denied. The Commission has already refused to release the post-9/1 I orders requested by BREDL for similar reasons; it would make no sense to indirectly defeat or undermine that decision by requiring release of the Duke plan implementing the same orders.
BREDL argues that because the Proposed Security Plan will likely reflect a larger and/or better equipped security force than the latest revision to the existing Security Plan, "[i]n The Proposed Security Plan would not allow a reduction in the number of armed security responders, and access to the Proposed Security Plan is not necessary to assure that reductions are not occurring. As noted above, Duke has already committed to provide BREDL with any changes to the security implementing procedures already produced during discovery, which would reflect any such changes.
Is CLI-04-6, 59 NRC at 73.
19 Redaction of elements of documents has also proven to be a controversial issue in the security portion of this proceeding.
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evaluating the vulnerability of the Catawba plant to theft of MOX fuel, it will be essential for BREDL to have a correct understanding of the size of the security force." 20 This assertion clearly turns the hearing process on its head. Any increase in the size of the armed response force would obviously better protect the MOX fuel assemblies. However, this should not be a factor in the ability of BREDL to develop a scenario to demonstrate a current vulnerability regarding MOX fuel, as was required by the Commission. To permit BREDL to pursue this course is to start a never-ending game of one-upmanship that would permit BREDL to increase the size of its hypothesized attacking force merely because the armed response force has been increased or defensive measures improved. This is not a proper use of discovery nor a proper role for an intervenor to play. The focus instead must be on the sufficiency of the security plan enhancements for MOX fuel. 2' Finally, BREDL asks that if the Board determines that the Proposed Security Plan should be withheld from disclosure for some period, the Board should suspend discovery until the Plan is available to BREDL.Y Perhaps BREDL is speculating that the Board would withhold the document until Staff review has been completed. Because of the speculative nature of the relief requested, the issue is not ripe. If the issue were ripe, BREDL's request would have to be denied because, as previously discussed, BREDL has already been provided substantial and detailed information regarding the security of the MOX lead assemblies at Catawba. Any supplemental discovery can and should proceed promptly. Moreover, BREDL has failed to address, let alone satisfy, the criteria for issuing a stay in a proceeding. BREDL has been 20 BREDL Motion at 4 (footnote omitted).
21 See CLI-04-6, 59 NRC at 72-73.
22 BREDL Motion at 5.
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provided sufficient information to fully, fairly and timely address the security contention in this case, and there is no reason to further delay this proceeding.
III. CONCLUSION For the reasons set forth above, BREDL's motion regarding discovery of the Proposed Security Plan should be denied.
Respectfully submitted, David A. Repka Mark J. Wetterhahn Anne W. Cottingham WINSTON & STRAWN LLP 1400 L Street, NW Washington, D.C. 20005-3502 (202) 371-5726 Timika Shafeek-Horton DUKE ENERGY CORPORATION 422 South Church Street Mail Code: PB05E Charlotte, N.C. 28201-1244 ATTORNEYS FOR DUKE ENERGY CORPORATION Dated in Washington, District of Columbia this 17th day of September, 2004 8
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of: )
) Docket Nos. 50-413-OLA DUKE ENERGY CORPORATION ) 50-414-OLA
)
(Catawba Nuclear Station, )
Units 1 and 2) )
CERTIFICATE OF SERVICE I hereby certify that copies of "Duke Energy Corporation's Opposition to Blue Ridge Environrmental Defense League's Motion to Compel Production of the Proposed Security Plan for Catawba Nuclear Station" in the captioned proceeding have been served on the following by deposit in the United States mail, first class, this 17'h day of September, 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: ellemaneeos.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: slugnrc.gov) (e-mail: dcurraneharmoncurran.com)
(e-mail: axf2(nrc.gov)
(e-mail: mjb5(nrc.gov)
David A. Repka Counsel for Duke Energy Corporation 2
DC:374598.1