ML041760142

Catawba - NRC Staff'S Response to the Blue Ridge Environmental Defense League'S Request for a Need to Know Determination

ML041760142
Person / Time
Site:	Catawba
Issue date:	06/23/2004
From:	Bupp M 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 7991
Download: ML041760142 (4)

Text

RAS 7991 June 23, 2004 DOCKETED 06/24/04 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 THE BLUE RIDGE ENVIRONMENTAL DEFENSE LEAGUES REQUEST FOR A NEED TO KNOW DETERMINATION INTRODUCTION By letter dated June 19, 2004, the Blue Ridge Environmental Defense League (BREDL) requested a need to know determination regarding information and documents requested by BREDL through discovery requests served on Duke Energy Corporation (Duke) and the NRC Staff (Staff), including Dukes security plan for the Catawba Nuclear Station and answers to specific interrogatories 12-17 to the Staff. The request was made pursuant to the above-captioned proceeding concerning Dukes request to amend the operating licenses for the Catawba nuclear power plants to authorize irradiation of mixed oxide fuel lead test assemblies. The Staff had determined that BREDL does not have a need to know the requested information.

DISCUSSION For Safeguards Information (SGI), the access requirements of 10 C.F.R. § 73.21(c) must be followed. These requirements state that an individual may be granted access to safeguards information if that person has an established need to know for the information and is . . . [an]

individual to whom disclosure is ordered pursuant to § 2.744(e) of the Commissions regulations.

10 C.F.R. § 73.21(c)(1)(vi). Need to know is defined as a determination by a person having

responsibility for protecting Safeguards Information that a proposed recipients access to Safeguards Information is necessary in the performance of official, contractual, or licensee duties of employment. 10 C.F.R. § 73.2(a). In the context of litigation, disclosure of information necessary to a proper decision in the proceeding may be made to parties in the proceeding . . .

and to their qualified witnesses and counsel. 10 C.F.R § 2.744(e). A witness is qualified to receive SGI only if they are qualified as an expert in the subject matter of the SGI documents.

Pacific Gas and Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-410, 5 NRC 1398, 1404 (1977); see also 46 Fed. Reg. 51718 (Oct. 22, 1981); Duke Energy Corp.

(Catawba Nuclear Station, Units 1 and 2), CLI-04-6, 59 NRC 62, 71-73 (2004).1 As the party offering an expert witness, BREDL bears the burden of showing that the proposed witness is qualified on the basis of his education, knowledge and experience. See Carolina Power &

Light Co. (Shearon Harris Nuclear Power Plant), LBP-01-9, 53 NRC 239, 250 (2001); see also Fed. R. Evid. 702.

In the instant case, there is insufficient basis on the record to find that BREDLs proffered security expert, Dr. Lyman, is an expert on security matters. Therefore, the NRC Staff has determined that BREDL does not have a need to know for the documents discussed in the June 19, 2004 letter.

Respectfully submitted,

/RA/

Margaret J. Bupp Counsel for NRC Staff Dated at Rockville, Maryland this 23rd day of June 2004 1

This issue is also discussed in the Staffs Objections to the Blue Ridge Environmental Defense Leagues First Set of Discovery Requests to NRC Staff Regarding Security Plan Submittal, filed on June 23, 2004.

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 THE BLUE RIDGE ENVIRONMENTAL DEFENSE LEAGUES REQUEST FOR A NEED TO KNOW DETERMINATION 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 23rd day of June, 2004.

Ann Marshall Young, Chair**

• Office of the Secretary**

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

Washington, DC 20555-0001 (E-mail: AMY@nrc.gov) Office of Commission Appellate Adjudication*

Anthony J. Baratta**

• Mail Stop: O-16C1 Administrative Judge U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Washington, D.C. 20555 Panel Mail Stop: T-3F23 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Panel Washington, DC 20555-0001 Adjudicatory File*

(E-mail: AJB5@nrc.gov) U.S. Nuclear Regulatory Commission Mail Stop: O-16C1 Thomas S. Elleman** Washington, DC 20555 Administrative Judge Atomic Safety and Licensing Board Diane Curran, Esq.**

Panel Harmon, Curran, Spielberg 5207 Creedmoor Rd. #101 & Eisenberg, L.L.P.

Raleigh, NC 27612 1726 M Street, N.W., Suite 600 (E-mail: elleman@eos.ncsu.edu) Washington, DC 20036 (E-mail: dcurran@harmoncurran.com)

Lisa F. Vaughn, Esq.** David A. Repka, Esq.**

Legal Department Anne W. Cottingham, Esq.**

Mail Code - PB05E Mark Wetterhahn, Esq.**

Duke Energy Corporation Winston & Strawn LLP 426 S. Church Street (EC11X) 1400 L Street, N.W.

Charlotte, NC 28201-1006 Washington, D.C. 20005-3502 (E-mail: lfVaughn@duke-energy.com) (E-mail: drepka@winston.com acotting@winston.com mwetterhahn@winston.com)

/RA/

Margaret J. Bupp Counsel for NRC Staff