ML043170369
| ML043170369 | |
| Person / Time | |
|---|---|
| Site: | Catawba  |
| Issue date: | 11/05/2004 |
| 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 | |
| 50-413-0LA, 50-414-0LA, ASLBP 03-815-03-OLA, RAS 8798 | |
| Download: ML043170369 (8) | |
Text
RAS 4g-7qg November 5, 2004 UNITED STATES OFAMERICA NUCLEAR REGULATORY COMMISSION DOCKETED BEFORE THE ATOMIC SAFETY AND LICENSING BOARD USNRC November 10, 2004 (10:40AM)
In the Matter of OFFICE OF SECRETARY Docket No's. 50-413-OLA, RULEMAKINGS AND DUKE ENERGY CORPORATION 50-414-OLA ADJUDICATIONS STAFF (Catawba Nuclear Station, Units 1 and 2)
MOTION FOR APPROVAL OF CONSENT ORDER REGARDING DOCUMENT DISCOVERY On behalf of itself, Duke Energy Corporation, and the Staff of the U.S. Nuclear Regulatory Commission ("NRC"), Blue Ridge Environmental Defense League
("BREDL") hereby moves for approval of the attached consent order regarding interim measures to compensate for the unavailability of the NRC's Agencywide Document Access and Management System ("ADAMS") during this proceeding. The terms of the consent order have been agreed to by the parties.
Additional measures sought by BREDL, which were not agreed to by all parties, are the subject of a separate motion by BREDL.
Respec lly submitted, ane 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 November 5, 2004 Teamplate = seecy- od#1sec - O aL
November 2004 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of Docket No's. 50-413-OLA, DUKE ENERGY CORPORATION 50-414-OLA (Catawba Nuclear Station, Units 1 and 2)
CONSENT ORDER REGARDING DOCUMENT DISCOVERY By letter dated October 25, 2004, counsel for the Staff of the U.S. Nuclear Regulatory Commission ("NRC") notified the Atomic Safety and Licensing Board
("ASLB") and the parties to this proceeding that the Staff has blocked public access to the NRC's Agencywide Document Access and Management System ("ADAMS")
"related to, among other things, this proceeding." As further clarified on the NRC's website, www.nrc.com, ADAMS has been rendered completely inaccessible to the public.
Therefore, for an undetermined period of time, it will not be possible for any party, including Duke Energy Corporation ("Duke"), the Applicant in this proceeding, or Blue Ridge Environmental Defense League ("BREDL"), the Intervenor in this proceeding, to use ADAMS to identify or retrieve correspondence, reports, or other documents from that system.
As a result, Duke and the NRC Staff have agreed to take the following measures:
(a) Duke and the NRC Staff shall continue to send BREDL's counsel copies of their outgoing correspondence that relates to the license amendment request. If the correspondence has an attachment that clearly is relevant to BREDL Security
Contention 5 but does not contain Safeguards Information, Classified Information, or Official Use Only information, the attachment shall be included.
(b) Duke and the NRC Staff shall continue to send BREDL's counsel copies of their outgoing correspondence between them that relates to security at the Catawba Nuclear Station, including generic correspondence that the Staff sends to Duke. If the correspondence has an attachment that clearly is relevant to Contention 5 but does not contain Safeguards Information, Classified Information, or Official Use Only information the attachment shall be included.
BREDL agrees that it will make timely requests for need-to-know determinations regarding any Safeguards or Classified documents that are identified through the above-listed measures.
These measures shall be binding on the parties until the issuance of a final Commission decision relating to Security Contention 5 or until one week after ADAMS is restored, whichever date is sooner.
It is so ORDERED.
THE ATOMIC SAFETY AND LICENSING BOARD Ann Marshall Young, Chair ADMINISTRATIVE JUDGE Anthony J. Baratta ADMINISTRATIVE JUDGE Thomas S. Elleman ADMINISTRATIVE JUDGE Rockville, Maryland November _, 2004 2
November 5, 2004 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of Docket No's. 50-413-OLA, DUKE ENERGY CORPORATION 50-414-OLA (Catawba Nuclear Station, Units I and 2)
BLUE RIDGE ENVIRONMENTAL DEFENSE LEAGUE'S MOTION FOR IMPOSITION OF INTERIM DISCOVERY MEASURES TO COMPENSATE FOR UNAVAILABILITY OF ADAMS Blue Ridge Environmental Defense League ("BREDL") hereby moves for the imposition of discovery measures needed to compensate for the unavailability of the U.S. Nuclear Regulatory Commission's ("NRC's" or "Commission's") Agencywide Document Access and Management System ("ADAMS"). Duke Energy Corporation ("Duke") and the NRC Staff have agreed to some compensatory discovery measures, which are set forth in a proposed Consent Order that has been filed simultaneously with this Motion. The parties were unable to reach an accommodation, however, on two measures that BREDL considers necessary for adequate access to NRC documents. Those measures that are proposed in this Motion.
Factual Background By letter dated October 25, 2004, counsel for the NRC Staff notified the Atomic Safety and Licensing Board ("ASLB") and the parties to this proceeding that the Staff has blocked public access to ADAMS for purposes "related to, among other things, this proceeding." As further clarified on the NRC's website, www.nrc.com, ADAMS has been rendered completely inaccessible to the public. Therefore, for an undetermined period of time, it will not be possible
for BREDL to use ADAMS to identify or retrieve correspondence, reports, or other documents from that system.
Argument BREDL's lack of access to the NRC's collection of public documents threatens to seriously hamper BREDL's ability to participate in this proceeding in a meaningful way. While BREDL has posed document discovery requests to the other parties, those requests may not encompass all documents that are relevant to BREDL's security contention. For instance, NRC correspondence with licensees other than Duke regarding security issues similar to the issues at Catawba may prove to be relevant to this case. BREDL now has no way of identifying those documents. In addition, BREDL has also used ADAMS to identify important documents that should have been provided in discovery but were not, such as Revision 2 to Duke's Security Plan.
Duke and the Staff have cooperated with BREDL in an effort to address this problem by agreeing to several compensatory measures designed to compensate for BREDL's lack of access to ADAMS. As reflected in the Consent Order that is being filed simultaneously with this motion, they have committed to providing BREDL with copies of their correspondence related to the instant license amendment request, as well as correspondence related to site-specific and generic security issues.
BREDL and the Staff have not been able to agree, however, on a request by BREDL for copies of any NRC Staff correspondence, reports or notices relating to Category I facilities.
While the Staff agreed to provide documents of which the Staff members assigned to the Catawba case happened to be aware, it would not commit to taking steps to assure that relevant documents are identified. This is not a sufficient assurance that relevant documents will be 2
identified. Because Catawba will become a Category I facility if and when it possesses plutonium MOX fuel, such documents clearly are relevant and should be identified to BREDL. '
Therefore, BREDL requests the ASLB to impose such a requirement on the Staff, as follows:
(c) The NRC Staff shall send BREDL's counsel copies of all generic correspondence, reports, and notices that relate to security at Category I facilities. If any piece of correspondence, report, or notice contains Safeguards Information, Classified Information, or Official Use Only information, the Staff shall send BREDL the cover page or some other document that is sufficient to alert BREDL to the existence and the general content of the piece of correspondence, report, or notice.
The parties have also been unable to agree on the question of whether the hearing should be delayed pending the resumption of ADAMS accessibility. BREDL respectfully submits that during the period between October 25 (when ADAMS was shut down) and the start of the hearing it is likely that the NRC Staff or licensees other than Duke may generate relevant security-related documents that will not be identified under the Consent Order. BREDL should be given a reasonable opportunity to review ADAMS for such relevant documents and request access to them before the hearing. Therefore, BREDL requests the ASLB to order that the hearing on Contention 5 will not commence until ADAMS has been fully restored for at least two weeks.
Respectfully submitted, biYae Curran Harmon, Curran, Spielberg, & Eisenberg, L.L.P.
1726 M Street N.W., Suite 600 Washington, D.C. 20036 202/328-3500 e-mail: Dcurrangharmoncurran.com November 5, 2004 i Whether or not BREDL is later determined to have a "need to know" with respect to these documents is a separate question that should not be confused with the relevance standard.
BREDL is entitled to know of their existence so that it can request access to them.
3
CERTIFICATE OF SERVICE I hereby certify that on November 5, 2004, copies of Motion for Approval of Consent Order Regarding Document Discovery, Consent Order, and Blue Ridge Environmental Defense League's Motion for Imposition of Interim Discovery Measures, Etc. were served on the following by e-mail and/or first-class mail, as indicated below.
Ann Marshall Young, Chair Susan L. Uttal, Esq.
Administrative Judge Antonio Fernandez, Esq.
Atomic Safety and Licensing Board Margaret J. Bupp, Esq.
U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop: T-3F23 Mail Stop 15 D21 Washington, D.C. 20555 U.S. Nuclear Regulatory Commission E-mail: AMY@nrc. gov Washington, D.C. 20555-0001 E-mail: slu@nrc.gov axf2@nrc.gov, Anthony J. Baratta mjb5@nrc.gov Administrative Judge Atomic Safety and Licensing Board Mary Olson U.S. Nuclear Regulatory Commission Southeast Office, Nuclear Information and Mail Stop: T-3F23 Resource Service Washington, D.C. 20555 P.O Box 7586 E-mail: AJB5@nrc.gov Asheville, NC 28802 E-mail: nirs. se@rindspring. com Office of Commission Appellate Adjudication U.S. Nuclear Regulatory Commission Timika Shafeek-Horton, Esq.
Mail Stop: O-16C 1 Lisa F. Vaughn, Esq.
Washington, D.C. 20555 Legal Dept. (EC-07H)
Duke Energy Corporation Thomas S. Elleman 526 South Church Street (ECI IX)
Administrative Judge Charlotte, NC 28201-1006 Atomic Safety and Licensing Board E-mail: 1fVaughn@duke-energy. cor 4760 East Country Villa Drive Tucson, AZ 85718 Janet Marsh Zeller, Executive Director E-mail: elleman@eos.ncsu.edu 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: 0-16CI Washington, D.C. 20555 E-mail: HEARINGDOCKET@nrc. gov Diane Curran