ML042750467
| ML042750467 | |
| Person / Time | |
|---|---|
| Site: | Catawba  |
| Issue date: | 10/01/2004 |
| From: | Fernandez A NRC/OGC |
| To: | Atomic Safety and Licensing Board Panel |
| Byrdsong A T | |
| References | |
| 50-413-OLA, 50-414-OLA, ASLBP 03-815-03-OLA, RAS 8570 | |
| Download: ML042750467 (7) | |
Text
1 Blue Ridge Environmental Defense Leagues Late-Filed Contention 6 on Dukes Security Plan Submittal, (September 17, 2003) (Contention 6).
2 This proceedings procedural history has been documented by the Staff in various filings before the Board and the Staff herein does not recite that history.
RAS 8570 October 1, 2004 DOCKETED 10/04/04 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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DUKE ENERGY CORPORATION
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Docket Nos. 50-413-OLA
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50-414-OLA (Catawba Nuclear Station
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Units 1 and 2)
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NRC STAFF OPPOSITION TO BREDLS LATE-FILED CONTENTION 6 ON DUKES SECURITY PLAN SUBMITTAL INTRODUCTION On September 17, 2004, the Blue Ridge Environmental Defense League (BREDL) filed a request for the admission of a late-filed contention.1 Pursuant to 10 C.F.R. § 2.714(c) and the Atomic Safety and Licensing Boards (Board) December 15, 2003 Order (Regarding Deadlines and Scheduling Issues), the staff of the Nuclear Regulatory Commission (Staff) hereby files its response to BREDLs Contention 6. For reasons further discussed below, the Staff opposes the admission of BREDLs late-filed contention based on its failure to meet the criteria for admission of contentions, pursuant to 10 C.F.R. § 2.714(b)(2) 2.
DISCUSSION A.
Legal Standards for Admission of Late-Filed Contentions The Commissions regulations provide that proposed late-filed contentions may only be admitted after a balancing of five factors:
(i)
Good cause, if any, for failure to file on time.
(ii)
The availability of other means whereby the petitioners interest will be protected.
(iii)
The extent to which the petitioners participation may reasonably be expected to assist in the development of a sound record.
(iv)
The extent to which the petitioners interest will be represented by existing parties.
(v)
The extent to which the petitioners participation will broaden the issues or delay the proceeding.
10 C.F.R. § 2.714(a)(1)(i)-(v). The first factor, whether good cause exists to allow the late-filed contentions, is entitled to the most weight. State of New Jersey (Department of Law and Public Safety), CLI-93-25, 83 NRC 289, 295 (1993). See also Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), CLI-02-16, 55 NRC 317, 347 (2002). Absent a showing of good cause, the petitioner must make a compelling showing that the remaining four factors warrant admission of the late-filed contentions. New Jersey, CLI-93-25, 83 NRC at 295; Commonwealth Edison Co. (Braidwood Nuclear Power Station, Units 1 and 2), CLI-86-8, 23 NRC 241, 244 (1986).
See also Diablo Canyon, CLI-02-16, 55 NRC at 348 (Petitioner must show strong countervailing reasons that override the lack of good cause.). As the party seeking admission of its late-filed contentions, BREDL bears the burden of showing that a balancing of the five factors weighs in favor of admitting the late-filed contentions. See Baltimore Gas and Electric Co. (Calvert Cliffs Nuclear Power Plant, Units 1 and 2), CLI-98-25, 48 NRC 325, 347 n.9 (1998).
In evaluating the five lateness factors, two factors -- the availability of other means to protect the petitioners interest and the ability of other parties to represent the petitioners interest --
are less important than the other factors, and are therefore entitled to less weight. Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Units 1 and 2), CLI-92-12, 36 NRC 62, 29 (1992). With respect to the third factor (the potential contribution to the development of a sound record), petitioners must provide a real clue about what they would say to support the contention beyond the minimal information they provide for admitting the contention. Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation) LBP-98-7, 47 NRC 142, 208-09 (1998).
Stated differently, the petitioner must set out with as much particularity as possible the precise issues it plans to cover, identify its prospective witnesses, and summarize their proposed testimony. Braidwood, 23 NRC at 246.
In addition to making the showing required by 10 C.F.R. § 2.714(b)(1), the party seeking admission of its late-filed contentions must also show that the late-filed contentions meet the requirements of 10 C.F.R. § 2.714(d)(2). Each contention must consist of "a specific statement of the issue of law or fact to be raised or controverted" and must be accompanied by:
a.
A brief explanation of the bases of the contention; b.
A concise statement of the alleged facts or expert opinion which supports the contention... together with references to those specific sources and documents of which the petitioner is aware and on which the petitioner intends to rely to establish those facts or expert opinion; c.
Sufficient information (which may include information pursuant to paragraphs (b)(2) (i) and (ii) of this section) to show that a genuine dispute exists with the applicant on a material issue of law or fact. This showing must include references to the specific portions of the application (including the applicants environmental report and safety report) that the petitioner disputes and the supporting reasons for each dispute, or, if the petitioner believes that the application fails to contain information on a relevant matter as required by law, the identification of each failure and the supporting reasons for the petitioners belief. On issues arising under the National Environmental Policy Act, the petitioner shall file contentions based on the applicants environmental report.
10 C.F.R. § 2.714(b)(2). The failure of a contention to comply with any one of these requirements is grounds for dismissing the contention. 10 C.F.R. § 2.714(d)(2)(i); Arizona Public Service Co.
(Palo Verde Nuclear Generating Station, Units 1, 2, and 3), CLI-91-12, 34 NRC 149, 155-56 (1991);
see Rules of Practice for Domestic Licensing Proceedings -- Procedural Changes in the Hearing Process, 54 Fed. Reg. 33,168 (1989). A full discussion of the Commissions contention requirements is contained in the Staffs Response to Contentions at 3-5.
3 The Staff, however, does not object to the admissibility of this contention on the basis that it fails to satisfy the late-filing criteria specified in 10 C.F.R. § 2.714(a)(1)(i)-(v).
B.
BREDLs Proposed Late-Filed Contention Contention 6:
Unlawful Degradation of Standard for Protection of MOX Fuel Dukes proposed measures for protecting MOX fuel from sabotage are inadequate to protect public health and safety or the common defense and security, because they are based on an impermissibly relaxed definition of radiological sabotage.
Also, Dukes use of a relaxed definition of radiological sabotage reduces the level of protection against theft of MOX fuel, because Duke depends to a large extent on its existing security force to protect against MOX fuel IF Duke measures the success of its overall security program against the potential for a Part 100 release in the event of radiological sabotage, then the rigor of its overall security program is likely to be less than if Duke measures it [sic] success against the potential for core damage.
Contention 6 at 2. As basis for this contention, BREDL alleges that one of Dukes implementing security procedures misstates the definition of radiological sabotage. See id. at 4. BREDL claims that, because Dukes procedure misquotes the definition of radiological sabotage, Duke has lowered the level of protection of the facility and has violated NRC requirements. Id. at 1.
Staff Response to Contention 6:
The Contention is inadmissible. The Intervenor has failed to meet basic contention pleading requirements. The Contention is deficient in two respects: (1) it fails to allege, with particularity, any material issues of law on which there is a valid dispute and (2) it does not raise any issues that if proven would entitle the Intervenor to relief. Therefore, pursuant to 10 C.F.R. § 2.714(d)(2)(i)-(ii),
the Board must refuse to admit Contention 6.3 As pled, Contention 6 alleges that Dukes proposed internal procedures are deficient and that Duke has impermissibly relaxed the standard against which the security force must protect.
See id. at 1,4. However, under NRC regulations, the licensees internal procedures are not a part of the amendment application, are not reviewed and approved by the NRC, and thus, do not form a part of the basis for regulatory action on this amendment application. The implementing procedures that BREDL complains of are documents entirely owned and controlled by the licensee and ultimately not within the scope of this proceeding. The document required by the regulations is the Physical Security Plan (a supplement to which is the subject of the instant proceeding).
Thus, alleging a deficiency in a document that is internal to the licensee and is unreviewed by the NRC is not sufficient legal basis for an admissible contention.
Moreover, the licensee, in its response to Contention 6, has already committed to removing the text that BREDL alleges is inadequate. In the affidavit submitted by Duke, Michael T. Cash, a Duke representative, under oath states that the procedure will be corrected to better reflect the actual performance objective.... See Affidavit of Michael T. Cash at ¶ 6 (Sept. 27, 2004). Earlier in the same affidavit, Mr. Cash states that the performance objective is protecting all target sets from radiological sabotage. Id. at ¶ 5. Therefore, it is clear that this proceeding could not afford BREDL any additional relief, given that Duke has already committed to correcting the language BREDL found inadequate and replacing it with language that would completely address BREDLs concerns stated in Contention 6.
CONCLUSION Based upon the foregoing discussion, the proposed late-filed contention should be rejected.
Respectfully submitted,
/RA/
Antonio Fernández Counsel for NRC staff Dated at Rockville, Maryland this 1st day of October, 2004.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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DUKE ENERGY CORPORATION
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Docket Nos. 50-413-OLA
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50-414-OLA
)
(Catawba Nuclear Station
)
Units 1 and 2)
)
CERTIFICATE OF SERVICE I hereby certify that copies of NRC STAFF OPPOSITION TO BREDLS LATE-FILED CONTENTION 6 ON DUKES SECURITY PLAN SUBMITTAL in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class; or as indicated by an asterisk (*), by deposit in the Nuclear Regulatory Commissions internal mail system; and by e-mail as indicated by a double asterisk (**), this 1ST day of October, 2004.
Ann Marshall Young, Chair * **
Administrative Judge Atomic Safety and Licensing Board Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (E-mail: AMY@nrc.gov)
Anthony J. Baratta * **
Administrative Judge Atomic Safety and Licensing Board Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (E-mail: AJB5@nrc.gov)
Thomas S. Elleman **
Administrative Judge Atomic Safety and Licensing Board 5207 Creedmoor Rd #101 Raleigh, NC 27612 (E-mail: elleman@eos.ncsu.edu)
Office of the Secretary * **
ATTN: Docketing and Service U.S. Nuclear Regulatory Commission Mail Stop: O-16C1 Washington, DC 20555 (E-mail: HEARINGDOCKET@nrc.gov)
Office of Commission Appellate Adjudication*
Mail Stop: O-16C1 U.S. Nuclear Regulatory Commission Washington, DC 20555 Atomic Safety and Licensing Board Adjudicatory File*
U.S. Nuclear Regulatory Commission Mail Stop: T-3F23 Washington, DC 20555 Diane Curran, Esq. **
Harmon, Curran, Spielberg
& Eisenberg, L.L.P.
1726 M Street, NW, Suite 600 Washington, DC 20036 (E-mail: dcurran@harmoncurran.com)
Timika Shafeek-Horton, Esq.**
Lisa F. Vaughn, Esq **
Legal Department Mail Code - PB05E Duke Energy Corporation 426 S. Church Street (EC11X)
Charlotte, NC 28201-1006 (E-mail: lfVaughn@duke-energy.com tshafeek@duke-energy.com)
David A. Repka, Esq. **
Anne W. Cottingham, Esq. **
Mark Wetterhahn, Esq. **
Winston & Strawn, L.L.P.
1400 L Street, NW Washington, DC 20005-3502 (E-mail: drepka@winston.com acotting@winston.com mwetterhahn@winston.com)
/RA/
Antonio Fernández Counsel for NRC Staff