ML043640356
| ML043640356 | |
| Person / Time | |
|---|---|
| Site: | Catawba  |
| Issue date: | 12/17/2004 |
| From: | Anthony Baratta, Elleman T, Austin Young Atomic Safety and Licensing Board Panel |
| To: | |
| Byrdsong A T | |
| References | |
| ASLBP-03-815-03-OLA, Docket Nos. 50-413-OLA, 50-414-OLA, RAS 9003 | |
| Download: ML043640356 (5) | |
Text
UNITED STATES OF AMERICA RAS 9003 NUCLEAR REGULATORY COMMISSION DOCKETED 12/17/04 SERVED 12/20/04 ATOMIC SAFETY AND LICENSING BOARD PANEL Before Administrative Judges:
Ann Marshall Young, Chair Anthony J. Baratta Thomas S. Elleman In the Matter of Docket Nos. 50-413-OLA, 50-414-OLA DUKE ENERGY CORPORATION ASLBP No. 03-815-03-OLA (Catawba Nuclear Station, Units 1 and 2) December 17, 2004 MEMORANDUM and ORDER (Need-to-Know Ruling on SECY Document)
Blue Ridge Environmental Defense League [BREDL] has appealed an NRC Staff Need-to-Know determination in this proceeding,1 denying access to SECY-03-0215, a December 17, 1
This proceeding involves Dukes February 2003 application to amend the operating license for its Catawba Nuclear Station to allow the use of four mixed oxide (MOX) lead test assemblies at the station, as part of the U.S.-Russian Federation nuclear nonproliferation program to dispose of surplus plutonium from nuclear weapons by converting it into MOX fuel to be used in nuclear reactors. Letter from M.S. Tuckman, Executive Vice President, Duke Power, to NRC (Feb. 27, 2003). In memoranda and orders dated March 5 and April 12, 2004 (the latter sealed as Safeguards Information (SGI);
redacted version issued May 28, 2004), the Licensing Board granted BREDLs request for hearing and admitted various non-security-related and security-related contentions. LBP-04-4, 59 NRC 129 (2004);
LBP-04-10, 59 NRC 296 (2004); see also LBP-04-7, 59 NRC 259 (2004) (dismissing one contention admitted in LBP-04-4, on grounds of mootness); LBP-04-12, 59 NRC 388 (2004) (permitting Intervenor to utilize certain additional information in litigation of contention admitted in LBP-04-10). An evidentiary hearing has already been held on the one remaining non-security-related contention in the proceeding.
Tr. 2072-2708.
The matters addressed herein relate to the one admitted security contention of BREDL, Security Contention 5, which concerns a number of exemptions Duke seeks, as part of its application, from certain regulatory requirements found in 10 C.F.R. Part 73 for the physical protection of formula quantities of special nuclear material. The contention in question, in the form we admitted it in LBP 10, states:
Duke has failed to show, under 10 C.F.R. §§ 11.9 and 73.5, that the requested exemptions from 10 C.F.R. § 73.46, subsections (c)(1); (h)(3) and (b)(3)-(12); and (d)(9) are authorized by law, will not constitute an undue risk to the common defense and security, and otherwise would be consistent with law and in the public interest.
LBP-04-10, 59 NRC at 352.
1
2003, Safeguards document on Insider Threat Mitigation by Licensees.2 The NRC Staff responded to BREDLs appeal, making various arguments why the document in question should not be provided, including grounds of relevance and privilege.3 BREDL replied to the Staffs Response, asserting the raising of new issues not previously raised or discussed, requesting permission to file such reply.4 We grant such request, and make the following ruling on BREDLs appeal:
We grant access to two portions of the document in question, and deny access to the remainder of the document. The two portions of the document to which we grant access concern two areas that the Commission specifically approved in a March 3, 2004, Staff Requirements Memorandum, which is designated as Safeguards Information. Those two portions at that point became Commission policy that is applicable to licensees including Duke, and are therefore relevant in the security portion of this proceeding. The remainder did not become Commission policy, are therefore are of remote relevance to this proceeding, if relevant at all. Moreover, all relevant and useful information concerning the document in question appears to be contained in the guidance document, access to which BREDL already has, that prompted the request for SECY-03-215. We note in this regard that the reference in the guidance document is to part, not all, of SECY-03-215.
Balancing all appropriate discovery- and security-related concerns, we find that providing the two portions of the document that address the areas approved by the 2
[BREDL] Appeal of Adverse Need-to-Know Determination Regarding SECY-03-215 (Dec. 10, 2004). BREDLs appeal followed the Staffs December 3, 2004, determination in a letter from Antonio Fernández to Diane Curran. See also Letter from Diane Curran to Administrative Judges (Dec. 9, 2004).
3 NRC Staffs Response to BREDLs Appeal of Staffs Adverse Need-to-Know Determination Regarding SECY-03-215 (Dec. 15, 2004).
4
[BREDL] Reply to NRC Staffs Response to Need-to-Know Appeal (Dec. 15, 2004); [BREDL]s Motion for Leave to Reply to NRC Staffs Response to Need-to-Know Appeal (Dec. 15, 2004).
2
Commission, but denying access to other portions, to be the most appropriate course to follow with regard to BREDLs request.
It is so ORDERED.
THE ATOMIC SAFETY AND LICENSING BOARD
/RA/
Ann Marshall Young, Chair ADMINISTRATIVE JUDGE
/RA/
Anthony J. Baratta ADMINISTRATIVE JUDGE
/RA/
Thomas S. Elleman ADMINISTRATIVE JUDGE Rockville, Maryland December 17, 20045 5
Copies of this document were sent this date by internet e-mail to counsel for all parties.
3
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )
)
DUKE ENERGY CORPORATION ) Docket Nos. 50-413-OLA
) 50-414-OLA (Catawba Nuclear Station, Units 1 and 2) )
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing LB MEMORANDUM AND ORDER (NEED-TO-W RULING ON SECY DOCUMENT) have been served upon the following persons by deposit in the U.S. mail, first class, or through NRC internal distribution.
Office of Commission Appellate Administrative Judge Adjudication Ann Marshall Young, Chair U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Washington, DC 20555-0001 Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Administrative Judge Administrative Judge Anthony J. Baratta Thomas S. Elleman Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 5207 Creedmoor Rd., #101 U.S. Nuclear Regulatory Commission Raleigh, NC 27612 Washington, DC 20555-0001 Susan L. Uttal, Esq. Henry B. Barron, Executive Vice President Antonio Fernández, Esq. Nuclear Operations Shana Zipkin, Esq. Duke Energy Corporation Office of the General Counsel 526 South Church Street Mail Stop - O-15 D21 P.O. Box 1006 U.S. Nuclear Regulatory Commission Charlotte, NC 28201-1006 Washington, DC 20555-0001 Mary Olson Diane Curran, Esq.
Director of the Southeast Office Harmon, Curran, Spielberg Nuclear Information and Resource Service & Eisenberg, L.L.P.
729 Haywood Road, 1-A 1726 M Street, NW, Suite 600 P.O. Box 7586 Washington, DC 20036 Asheville, NC 28802
2 Docket Nos. 50-413-OLA and 50-414-OLA LB MEMORANDUM AND ORDER (NEED-TO-KNOW RULING ON SECY DOCUMENT)
David A. Repka, Esq. Lisa F. Vaughn, Esq.
Anne W. Cottingham, Esq. Duke Energy Corporation Mark J. Wetterhahn, Esq. Mail Code - PB05E Winston & Strawn LLP 422 South Church Street 1400 L Street, NW P.O. Box 1244 Washington, DC 20005 Charlotte, NC 28201-1244 Paul Gunter Timika Shafeek-Horton, Esq.
Nuclear Information and Resource Service Duke Energy Corporation 1424 16th St., NW, Suite 404 Mail Code - PB05E Washington, DC 20036 422 South Church Street Charlotte, NC 28242
[Original signed by Evangeline S. Ngbea]
Office of the Secretary of the Commission Dated at Rockville, Maryland, this 20th day of December 2004