ML043650084
| ML043650084 | |
| Person / Time | |
|---|---|
| Site: | Catawba  |
| Issue date: | 12/22/2004 |
| From: | Anthony Baratta, Elleman T, Austin Young Atomic Safety and Licensing Board Panel |
| To: | |
| Byrdsong A T | |
| References | |
| ASLBP No. 03-815-03-OLA, Docket Nos. 50-413-OLA, 50-414-OLA, RAS 9041 | |
| Download: ML043650084 (5) | |
Text
UNITED STATES OF AMERICA RAS 9041 NUCLEAR REGULATORY COMMISSION DOCKETED 12/22/04 SERVED 12/22/04 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 22, 2004 MEMORANDUM and ORDER (Ruling on BREDL Motion for Leave to File Prefiled Written Testimony Out of Time)
Blue Ridge Environmental Defense League [BREDL] has moved for leave to file the Prefiled Written Testimony of Dr. Edwin S. Lyman Regarding [BREDL]s Security Contention 5 Out of Time in this proceeding,1 based upon a family emergency involving BREDL counsel, 1
[BREDL]s Motion to Amend Protective Order (Dec. 15, 2004) [hereinafter BREDL Motion].
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.
1
which arose on the afternoon of Friday, December 17, the due date for the prefiled direct testimony.2 BREDL notes also the two telephone conferences held December 17 as an added delaying factor. Counsel states that because of the family emergency, she had to leave her office on Friday afternoon at 4:15, prior to finishing the proof-reading of the prefiled testimony, and notes that she ensured that the testimony was delivered first thing the next business day of Monday, December 20, 2004.3 Duke does not oppose BREDLs motion, but neither did it consent to it, stating that BREDL counsel should have anticipated last-minute issues arising, asserting that Duke witnesses were prejudiced in not seeing the testimony on Monday, and questioning why BREDL could not have had Dr. Lyman or other staff proofread the document.4 In response BREDL counsel stated that the law office of Duke counsel had the testimony at 8:00 a.m. on Monday, December 20, and Dukes corporate headquarters in Charlotte had the testimony before 11:00 a.m.; and that she did not consider it appropriate for her to leave the testimony for Dr. Lyman or staff to proofread the document.5 NRC Staff counsel indicated that, had BREDL counsel been able to reach her (which counsel did attempt to do), she would not have consented to the motion.6 Taking all parties arguments into consideration, we grant BREDLs motion, for good cause shown. Although it is of course desirable to anticipate all possibilities in advance, it is not LBP-04-10, 59 NRC at 352.
2
[BREDL] Motion for Leave to File Prefiled Written Testimony Out of Time (Dec. 20, 2004).
3 Id. at 1-2.
4 E-mail from Mark Wetterhahn to ASLB (Dec. 20, 2004).
5 E-mail from Diane Curran to Members of ASLB (Dec. 21, 2004).
6 E-mail from Susan Uttal to Administrative Judges (Dec. 20, 2004).
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always possible to do this, and family emergencies are by their very nature unpredictable.
Scheduling allowances have been made in this proceeding for the family needs of NRC Staff counsel, and we find it appropriate to make reasonable such allowances when there is no undue prejudice. We find no such undue prejudice here. The materials were delivered first thing in the morning on the next business day, evidencing a clear effort to avoid delay as much as possible under the circumstances. In addition, in this proceeding in which security concerns have been of great concern, and given counsels responsibility for the filing, we find BREDL counsels wish not to leave her proof-reading to others to be reasonable.
For all the preceding reasons, we grant BREDLs motion to file out of time.
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 22, 20047 7
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 (RULING ON BREDL MOTION FOR LEAVE TO FILE PREFILED WRITTEN TESTIMONY OUT OF TIME) 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 (RULING ON BREDL MOTION DOE LEAVE TO FILE PREFILED WRITTEN TESTIMONY OUT OF TIME)
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 22nd day of December 2004