ML050470029

Catawba - NRC Staff'S Response to Bredl'S February 3rd Letter

ML050470029
Person / Time
Site:	Catawba
Issue date:	02/15/2005
From:	Zipkin S NRC/OGC
To:	Atomic Safety and Licensing Board Panel
Byrdsong A T
References
50-413-OLA, 50-414-OLA, ASLBP 03-815-03-OLA, RAS 9371
Download: ML050470029 (4)

Text

February 15, 2005 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

DUKE ENERGY CORPORATION ) Docket Nos. 50-413-OLA,

) 50-414-OLA

)

(Catawba Nuclear Station )

Units 1 and 2) )

NRC STAFFS RESPONSE TO BREDLS FEBRUARY 3RD LETTER INTRODUCTION On February 3, 2005, the Blue Ridge Environmental Defense League (BREDL) submitted a letter to the Atomic Safety Licensing Board Panel (Board) detailing its position on a number of outstanding matters in the above-captioned matter. In the letter, BREDL requested that an Official Use Only (OUO) document submitted by the NRC staff (Staff) under no objection and entered as Exhibit SEC-OUO-2 be replaced by an unrestricted version submitted by BREDL. The Staff opposes this request for the reasons discussed herein.

DISCUSSION Exhibit SEC-OUO-2 is a document called the Red Team Report, which originated in the United States Department of Energy (DOE). DOE designated the document as OUO. The document was introduced into evidence by both the Staff and BREDL; the Staff submitted the document in its entirely, while BREDL submitted only those portions of the document relevant to its testimony. Both versions were admitted into evidence without objection on January 13, 2005.

At the time the Staffs version was introduced, BREDL requested that it be able to submit an unrestricted version of the document as a substitute for its own exhibit. Tr. at 5035-36. No objection was made by any party. By January 14, 2005, BREDL had not yet located an unrestricted

version of the exhibit. Tr. at 5353. The Staff however, had reviewed the unrestricted version and concluded that there were enough differences between it and the OUO version, that it would rather keep the OUO version in the record. Tr. at 5352. BREDL had no objection to the Staffs exhibit but reserved the right to substitute an unrestricted version for its own exhibit. Tr. at 5353.

In its February 3, 2005 letter to the Board, BREDL now requests that the unrestricted use version of the Red Team Report be substituted for the complete copy of the report that is attached in full to the Staffs testimony. See BREDL February 3, 2005 letter. The Staff objects to BREDLs request. If BREDL wishes to submit the unrestricted version in place of its own restricted version of its exhibit, the Staff has no objection at this time. BREDL may not however, substitute its exhibit for the Staffs. There were no objections to the Staffs version at the time of its introduction or admission and BREDL may not object to it now. See Florida Power & Light Co. (St. Lucie Nuclear Power Plant, Unit 2), ALAB-335, 3 NRC 830, 842 n.26 (1976); Tennessee Valley Authority (Hartsville Nuclear Plant, Units 1A, 2A, 1B & 2B), ALAB-463, 7 NRC 341, 362 n. 90 (1978).

It is not within BREDLs purview to determine whether the information contained within the unrestricted version fulfills the Staffs purpose for submitting the document into evidence. The Staff submitted a document as an exhibit. It was entered into evidence without objection by any party.

BREDL may not use its own judgment to substitute another document for the Staffs exhibit subsequent to the close of the hearing. Therefore, the Staff opposes BREDLs request to replace Staff Exhibit SEC-OUO-2 with BREDLs version.

Respectfully submitted,

/RA/

Shana Zipkin Counsel for NRC staff Dated at Rockville, Maryland this 15th day of February, 2005

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 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 NRC STAFFS RESPONSE TO BREDLS FEBRUARY 3RD LETTER in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class; or as indicated by an asterisk (*), by deposit in the Nuclear Regulatory Commissions internal mail system; and by e-mail as indicated by a double asterisk

(**), this 15th day of February, 2005.

Ann Marshall Young, Chair * ** Office of the Secretary * **

Administrative Judge ATTN: Docketing and Service Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Mail Stop: T-3F23 Mail Stop: O-16C1 U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555-0001 (E-mail: HEARINGDOCKET@nrc.gov)

(E-mail: AMY@nrc.gov)

Office of Commission Appellate Anthony J. Baratta * ** Adjudication

• Administrative Judge Mail Stop: O-16C1 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Mail Stop: T-3F23 Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Atomic Safety and Licensing Board (E-mail: AJB5@nrc.gov) Adjudicatory File

• U.S. Nuclear Regulatory Commission Thomas S. Elleman ** Mail Stop: T-3F23 Administrative Judge Washington, DC 20555 Atomic Safety and Licensing Board Mail Stop: T-3F23 Diane Curran, Esq. **

U.S. Nuclear Regulatory Commission Harmon, Curran, Spielberg Washington, DC 20555-0001 & Eisenberg, L.L.P.

(E-mail: elleman@eos.ncsu.edu) 1726 M Street, NW, Suite 600 Washington, DC 20036 (E-mail: dcurran@harmoncurran.com)

David A. Repka, Esq. ** Timika Shafeek-Horton Mark Wetterhahn, Esq. ** Lisa F. Vaughn Anne W. Cottingham, Esq. ** Law Department Lisa F. Vaughn, Esq. ** Duke Energy Corporation Timika Shafeek-Horton, Esq. ** 526 South Church Street, ECO7H Winston & Strawn, L.L.P. P.O. Box 1006 1400 L Street, NW Charlotte, NC 28201-1006 Washington, DC 20005-3502 (E-mail: lfVaughn@duke-energy.com (E-mail: drepka@winston.com tshafeek@duke-energy.com) acotting@winston.com mwetterhahn@winston.com)

/RA/

Shana Zipkin Counsel for NRC Staff