ML042240056
| ML042240056 | |
| Person / Time | |
|---|---|
| Site: | Catawba  |
| Issue date: | 07/30/2004 |
| 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-OLA, 50-414-OLA, ASLBP 03-815-03-OLA, CLI-04-21, RAS 8241 | |
| Download: ML042240056 (6) | |
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- July 3 0, 2004 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION DOCKETED BEFORE THE ATOMIC SAFETY AND LICENSING BOARD USNRC August 6, 2004 (3
- 36PM)
In the Matter of Docket No's. 50-413-OLA, OFFICE OF SECRETARY DUKE ENERGY CORPORATION 50-414-OLA ADJUDICATIONS STAFF (Catawba Nuclear Station, Units 1 and 2)
BLUE RIDGE ENVIRONMENTAL DEFENSE LEAGUE'S PRELIMINARY PROPOSED COURSE OF ACTION FOR RESUMED LITIGATION OF SECURITY CONTENTION S Pursuant to the Atomic Safety and Licensing Board's ("ASLB's') Order (Addressing Discovery Scheduling Matters) (July 28,2004), Blue Ridge Environmental Defense League
("BREDL") hereby makes a preliminary proposal for a course of action for the resumed litigation of BREDL Contention 5. In light of the Commission's recent decision in CLI-04-21, which rejected the NRC Staff's petition for interlocutory review of the ASLB's finding that BREDL's expert, Dr. Edwin S. Lyman, is qualified with respect to security matters, BREDL submits that the appropriate course of action is to resume litigation of Contention 5 under a schedule designed to provide a hearing that is both meaningful and efficient.
BREDL respectfully submits that it is not possible, in any meaningful way, to finish discovery, prepare testimony, and conduct a hearing within the schedule established by the ASLB in previous orders. Therefore, BREDL proposes a new schedule for the proceeding, which is set forth below.
The proposed schedule takes into account a number of relevant factors. First, BREDL does not believe it is necessary to conduct the rest of the hearing under the extremely tight time FempAl he t 5 e cy_ 0 4oq
- sc y
frames that were set by the ASLB at the outset of the security proceeding, because it is no longer possible to satisfy Duke's goal of concluding this entire license aiiiendment proceeding before the U.S. Department of Energy ships plutonium to France for conversion to lead test assemblies.
Even if the ASLB were to issue a decision in October or November after a September hearing, that would be weeks or months after the plutonium is scheduled to be shipped to France. Thus, there is no practical reason to sacrifice the orderliness and completeness of discovery and testimony preparation. BREDL is particularly concerned that to date, the schedule has not provided sufficient time to resolve disputes arising from the first round of discovery before the second round begins. For instance, before the ASLB suspended this proceeding, the parties were about to commence a second round of discovery in advance of achieving resolution of various disputes regarding the first round. BREDL respectfully submits that in order to ensure a meaningful process for discovery, the schedule should contain provision for resolution of the motions to compel and need-to-know issues arising in the first round of discovery, before the second round begins.' The litigation schedule should also hold the time for taking depositions open until all disputes regarding the second round of written discovery have been resolved, in order to ensure that parties have access to all relevant documents before taking depositions.
Second, the schedule should take into account the fact that except for pleadings and handwritten notes and a few miscellaneous documents, all of the relevant licensing documents are held at the offices of Winston and Strawn, and may not be removed from there by BREDL's counsel or expert. The requirement to review documents at Duke's counsel's office significantly adds to the amount of time that BREDL's representatives need to prepare their case.
I The need-to-know issues include the apparent dispute between Duke and the NRC regarding the appropriate process for making such determinations.
2
Third, in part to accommodate the previous schedule set by the ASLB for this security litigation, BREDL's counsel and expert scheduled their vacation for mid-August. Counsel for BREDL will be out of her office from August 13 through August 23. Dr. Lyman will also be out of his office during the week of August 16. BREDL also anticipates that all parties will observe the holidays at Thanksgiving, Chanukah, Christmas, and New Year's.
In light of these factors, BREDL proposes the following schedule:
8/13/04 ASLB rules on motions to compel 8/25/04 Parties exchange all outstanding discovery information from Round 1 8/30/04 Deadline for second round of written discovery; depositions begin 9/03/04 Deadline for objections to discovery requests 9/09/04 Oral argument regarding objections (closed session) 9/13/04 Deadline for responses to second round of discovery 9/17/04 Deadline for motions to compel 9/21/04 Oral argument regarding motions to compel (closed session) 9/23/04 ASLB rules on motions to compel 9/27/04 Parties exchange all outstanding discovery information from Round 2 10/01/04 Depositions close 10/06/04 Time reserved for closed session if needed 10/15/04 Deadline for written pre-filed testimony 10/25/04 Deadline for rebuttal testimony 11/03/04-11/04/04 Hearing on security issues 12/03/04 Deadline for proposed findings of fact and conclusions of law 01/07/04 Deadline for reply findings of fact and conclusions of law 3
BREDL believes that this schedule provides sufficient time frames for various stages of this litigation to allow the parties a meaningful opportunity to present their case.
Respectfully submitted, cae 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 July 30, 2004 4
CERTIFICATE OF SERVICE I hereby certify that on July 30, 2004, copies of Blue Ridge Environmental Defense League's Preliminary Proposed Course of Action for Resumed Litigation of Contention 5 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@mindspring. com Office of Commission Appellate Adjudication U.S. Nuclear Regulatory Commission Lisa F. Vaughn, Esq.
Mail Stop: 0-16C1 Timika Shafeek-Horton, Esq.
Washington, D.C. 20555 Legal Dept. (PBO5E)
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: lfVaughn@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@skvbest.com
2 David A. Repka, Esq.
Anne W. Cottingham, Esq.
Mark 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: 0-16C1 Washington, D.C. 20555 E-mail: HEARINGDOCKET@nrc. gov eCurran