ML042100357

Blue Ridge Environmental Defense Leagues Opposition to NRC Staffs Motion for Leave to Reply to Bredls Opposition

ML042100357
Person / Time
Site:	Catawba
Issue date:	07/20/2004
From:	Curran D Blue Ridge Environmental Defense League, Harmon, Curran, Harmon, Curran, Spielberg & Eisenberg, LLP
To:	NRC/OCM
Byrdsong A T
References
50-413-OLA, 50-414-OLA, RAS 8198
Download: ML042100357 (6)

Text

"RAS gl(q8 July 20, 2004 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION DOCKETED USNRC In the Matter of July 27, 2004 (12:14PM)

Docket No's. 50-413-OLA, DUKE ENERGY CORPORATION 50-414-OLA OFFICE OF SECRETARY RULEMAKINGS AND (Catawba Nuclear Station, Units 1 and 2)

ADJUDICATIONS STAFF BLUE RIDGE ENVIRONMENTAL DEFENSE LEAGUE'S OPPOSITION TO NRC STAFF'S MOTION FOR LEAVE TO REPLY TO BREDL'S OPPOSITION Blue Ridge Environmental Defense League ("BREDL") hereby responds to the NRC Staffs Motion for Leave to Reply to BREDL's Opposition to NRC Staff's Petition for Review Regarding BREDL's Security Expert (July 19, 2004) (hereinafter "NRC Staff Motion").' BREDL opposes the NRC Staff Motion because it is inexcusably late and because the Staff has mischaracterized the argument by BREDL to which the Staff seeks leave to reply.

First, the NRC Staff Motion should be rejected because it is inexcusably late.

Although there is no time limit on the filing of a reply to a response to a petition for review because no such reply is allowed, ten days is far beyond the time period that reasonably should be allowed in a case where the petitioner has requested such extraordinary relief as a stay and interlocutory review. The Staff's delay is particularly inexcusable because this proceeding has been expedited at the request of the NRC Staff. 2 I The NRC Staff Motion is accompanied by NRC Staff's Reply to BREDL's Response to the Staff s Petition for Review (July 19, 2004) (hereinafter "NRC Staff Reply").

2 At the request of Duke Energy Corporation (hereinafter "Duke") and the Staff, the ASLB has set an "aggressive" schedule for this entire license amendment proceeding, 1

/11/11Sc /-rO 0 P

Moreover, the Staff inexplicably failed to seek to reply to BREDL by July 13, 2004, the deadline set by the Commission for any reply by BREDL to Duke's responsive brief.

See the Commission's July 1, 2004 Order. Finally, the adverse effect on the discovery process of the Staff's ongoing and meritless objection to Dr. Lyman's expert qualifications has already caused the ASLB to suspend the security-related aspects of this proceeding until the Commission rules on the issue. See Order issued from the bench on July 16, 2004. Given the likely additional delays that would be caused by consideration of the Staffs tardy reply, the lateness of the NRC Staff Motion is unjustified.

Second, the Staff's motion should be rejected because it mischaracterizes the argument by BREDL to which the Staff seeks leave to reply. The Staff alleges that BREDL raised the issue of "whether the Staff waived its right to object to BREDL's expert qualifications." NRC Staff Motion at 2. In fact, BREDL has not raised any general objection to the Staff's right to challenge Dr. Lyman's qualifications as a security expert in this proceeding. In response to the Staff's and Duke's objections to Dr.

Lyman's expert qualifications, BREDL sought to resolve the issue by offering Dr. Lyman for voir dire during the oral argument on June 25, 2004. See Blue Ridge Environmental Defense League's Opposition To NRC Staff Petition For Review Of ASLB Ruling On BREDL Security Expert Qualifications And Opposition To Motion For Stay at 5 (July 9, 2004) (hereinafter "BREDL Opposition"). Both the Staff and Duke participated in the voir dire without objection. Id.

in order to accommodate Duke's and the U.S. Department of Energy's wish to ship plutonium to France for fabrication into lead test assemblies ("LTAs") while the Cadarache plant is still open. See Memorandum and Order (Setting Schedule for Discovery and Hearing on Security-Related Matters), slip op. at 2-5 (April 28, 2004).

2

Contrary to the Staffs characterization, what BREDL argued in its Opposition was that the Staff had waived its right to argue that disclosure to Dr. Lyman of the limited amount of additional safeguards information disputed in discovery would cause "irreparable harm" under the standard for issuing a stay or granting interlocutory review.

BREDL Opposition at 7. BREDL contended that because the Staff had already made five separate need-to-know determinations granting Dr. Lyman access to a substantial quantity of safeguards information regarding Duke's Security Plan Submittal, without challenging his qualifications to review that information, any alleged harm caused by further disclosures of requested discovery information to Dr. Lyman would be merely incremental and would not rise to the level of "irreparable harm." Id.

Thus, there is no merit to the Staff's claim that it has good cause to reply because BREDL raised this argument "for the first time" in its Opposition. NRC Staff Motion at

2. BREDL would have had no reason to address the issue of irreparable harm before the ASLB. The question of the validity of the Staffs claim to irreparable harm did not come up until the Staff filed its stay motion and petition for review.

In summary, the Staff has failed to submit any "'good reason[]"' why it should be allowed to reply to BREDL's showing that the Staff's claim of irreparable harm has no basis in fact. See Staff Motion at 2, quoting Constmners Power Co. (Midland Plant, Units I and 2), ALAB-I 15, 6 AEC 257 (1973). Therefore, the Staff's motion for leave to reply to BREDL should be denied.

3

Respectfully submitted, Dine 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 July 20, 2004 4

CERTIFICATE OF SERVICE I hereby certify that on July 20, copies of the foregoing BLUE RIDGE ENVIRONMENTAL DEFENSE LEAGUE'S OPPOSITION TO NRC STAFF'S MOTION FOR LEAVE TO REPLY TO BREDL'S OPPOSITION 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: 0-16C1 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 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. go 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, m-jb@nrc.gov Mary Olson Southeast Office, Nuclear Information and Resource Service P.O Box 7586 Asheville, NC 28802 E-mail: nirs. segmindspring. com Lisa F. Vaughn, Esq.

Timika Shafeek-Horton, Esq.

Legal Dept. (PB05E)

Duke Energy Corporation 526 South Church Street (EC IIX)

Charlotte, NC 28201-1006 E-mail: 1 fVaughn~duke -energy.

cor Janet Marsh Zeller, Executive Director Blue Ridge Environmental Defense League P.O. Box 88 Glendale Springs, NC 28629 E-mail: BREDLiskybest. com

2 David A. Repka, Esq.

Anne W. Cottingham, Esq.

Mark J. Wetterhahan, Esq.

Winston & Strawn, LLP 1400 L Street, N.W.

Washington, D.C. 20005-3502 E-mail: drepkaswinston. com acotting~winston.com mwetterhahn~winston.com Nils J. Diaz, Chairman Edward McGaffigan, Jr., Commissioner U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 RAM(~nrc.zov E-mail: EXM(?nrc.,ov Jeffrey S. Merrifield, Commissioner U.S. Nuclear Regulatory Commission Washington, DC 20555 JMER(onrc.gov I

Diane Curran