ML043140174
| ML043140174 | |
| Person / Time | |
|---|---|
| Site: | Catawba  |
| Issue date: | 10/29/2004 |
| From: | Curran D Blue Ridge Environmental Defense League, Harmon, Curran, Harmon, Curran, Spielberg & Eisenberg, LLP |
| To: | Office of Nuclear Reactor Regulation |
| Byrdsong A T | |
| References | |
| 50-413-OLA, 50-414-OLA, ASLBP 03-815-03-OLA, RAS 8777 | |
| Download: ML043140174 (5) | |
Text
HAS S17-7
'y October 29, 2004 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of DUKE ENERGY CORPORATION (Catawba Nuclear Station, Units I and 2)
DOCKETED USNRC November 8, 2004 (10:30AM)
Docket No's. 50-413-OLA, t 50-41-OLAN OFFICE OF SECRETARY 50 414 OLA RULEMAKINGS AND ADJUDICATIONS STAFF BLUE RIDGE ENVIRONMENTAL DEFENSE LEAGUE'S APPEAL OF NRC STAFF'S OCTOBER 27,2004, NEED-TO-KNOW DETERMINATION Pursuant to paragraph C.2 of the Atomic Safety and Licensing Board's ("ASLB's")
Memorandum and Order (Protective Order Governing Duke Energy Corporation's September 15, 2003 Security Plan Submittal) (December 15, 2003), Blue Ridge Environmental Defense League
("BREDL") hereby appeals a negative need-to-know determination made by the Staff of the U.S.
Nuclear Regulatory Commission ("NRC") or ("Commission") on October 27, 2004. Letter from Susan L. Uttal to Ann Marshall Young (hereinafter "Uttal Letter"). The Staff subsequently corrected and amended the determination in an e-mail message. Message from Antonio Fernmndez to Administrative Judges re: Staff's Letter of October 17, 2004 (October 28, 2004)
(hereinafter "Fernandez E-mail").
The document in question consists of a May 14, 2004, report on the results of the NRC Staff's evaluation of lessons learned from the pilot expended force-on-force exercises. The document is referenced in a letter from Scott A. Morris, NRC, to Henry B. Barron, Duke Energy Corp., re: Security Plan Provisions for Enhanced Owner Controlled Area Surveillance and Response (TAC Nos. MC2936, MC2937, MC2902, MC 2903, MC2945, MC2946, and MC2957)
(September 21, 2004). BREDL requested the NRC Staff to provide access to the document in a MAsplafe = '
C 0ec-Ol x
letter dated October 19, 2004. Letter from Diane Curran to Antonio Femdndez and Susan L.
Uttal, re: Informal Discovery Request for Security-Related Documents and Request for Need-to-Know Determination.
The Uttal Letter does not provide any description of the withheld document or any rationale for the Staffs determination, other than to refer the ASLB to the transcript of the closed session of October 25, 2004. The Fernandez E-mail provides a short explanation of the decision as follows:
The basis for the Staff's determination, as argued in the closed session, is the generic nature of the information contained therein and the fact that the information concerns force-on-force exercises that have tested {sic] solely against the DBT for radiological sabotage (an issue that the Commission has repeatedly stated is beyond the scope of this proceeding).
BREDL respectfully submits that the Staff's rationale is insufficient to support its negative need-to-know determination. As BREDL argued during the closed session, the requested report is relevant to Contention 5 for two primary reasons. First, it may show vulnerabilities in licensee security plans that are applicable to the Catawba plant. Second, the report may provide important evidence regarding the usefulness of force-on-force testing in general. This is a key issue in this proceeding, because Duke has requested an exemption from force-on-force testing against theft scenarios.
Moreover, the fact that the report is generic does not diminish its relevance. Indeed, the cover letter from the Staff to Duke demonstrates that the Staff itself considers the report to be specifically useful to Duke for purposes of protecting the Owner-Controlled Area at Catawba.
Nor is the relevance of the report diminished by the fact that the subject of the test was the effectiveness of protection against sabotage rather than theft. For purposes of demonstrating the usefulness and need for force-on-force testing to demonstrate the effectiveness of security 2
measures, no valid distinction can be made between the testing of theft scenarios and sabotage scenarios. The results of a force-on-force test against sabotage scenarios would provide a perfectly valid illustration of the usefulness and need for force-on-force testing against theft scenanos.
Accordingly, BREDL requests that the ASLB review the withheld document with these considerations in mind, and reverse the Staff's negative need-to-know determination with respect to the requested document.
Respectfully submitted, iane Curran Harmon, Curran, Spielberg, & Eisenberg, L.L.P.
1726 M Street N.W., Suite 600 Washington, D.C. 20036 202/328-3500 e-mail: Dcurranbharmoncurran.com October 29, 2004 3
CERTIFICATE OF SERVICE I hereby certify that on October 29, 2004, copies of Blue Ridge Environmental Defense League's Appeal of NRC Staffs October 27, 2004, 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: 0-16CI 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@nrc.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@mindspring. com Lisa F. Vaughn, Esq.
Timika Shafeek-Horton, Esq.
Legal Dept. (PBO5E)
Duke Energy Corporation 526 South Church Street (EC IIX)
Charlotte, NC 28201-1006 E-mail: lfVaughn@duke-energy. cor Janet Marsh Zeller, Executive Director Blue Ridge Environmental Defense League P.O. Box 88 Glendale Springs, NC 28629 E-mail: BREDL@skybest. 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 mwetterhahn@winston.com 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@nrc. gov a-~
Diane Curran