CLI-04-11, NRC Staffs Response to the Commissions April 21, 2004 Order Relating to Certified Question Regarding Bredl Security Contention 1
| ML041270488 | |
| Person / Time | |
|---|---|
| Site: | Catawba  |
| Issue date: | 05/05/2004 |
| From: | Fernandez A NRC/OGC |
| To: | NRC/OCM |
| Byrdsong A T | |
| References | |
| 50-413-OLA, 50-414-OLA, ASLBP 03-815-03-OLA, CLI-04-11, RAS 7732 | |
| Download: ML041270488 (13) | |
Text
RAS 7732 May 5, 2004 DOCKETED 05/06/04 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of
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DUKE ENERGY CORPORATION
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Docket Nos. 50-413-OLA, 50-414-OLA
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(Catawba Nuclear Station, Units 1 and 2)
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NRC STAFFS RESPONSE TO THE COMMISSIONS APRIL 21, 2004 ORDER RELATING TO CERTIFIED QUESTION REGARDING BREDL SECURITY CONTENTION 1 INTRODUCTION In an order issued on April 21, 2004, the Commission directed that the parties file briefs addressing the admissibility of the Blue Ridge Environmental Defense Leagues (BREDL) Security Contention 1. Duke Energy Corp. (Catawba Nuclear Station, Units 1 and 2), CLI-04-11, 59 NRC, slip op. at 7. Additionally, the Commission asked the parties to address what the presiding Atomic Safety and Licensing Board (Board) characterized as several pertinent related questions. Id. The Nuclear Regulatory Commission Staff (NRC Staff or Staff) herein files its response to CLI-04-11. For the reasons discussed below, the Commission should rule that Security Contention I is inadmissible and that the additional issues identified by the Board are inapposite to this proceeding.
BACKGROUND The instant case arises out of Duke Energy Corporations (Duke) February 27, 2003, license amendment request (LAR) to irradiate four mixed oxide (MOX) lead test assemblies (LTAs) at Catawba. As part of its LAR, Duke submitted a supplement to its security plan and requested exemptions from certain regulatory requirements. These requirements would be triggered by the presence of formula quantities of strategic special nuclear material in the form of fresh, unirradiated MOX LTAs. See Letter from M.S. Tuckman, Re: Physical Security Plan and Request for Exemptions to Support MOX Fuel Use (Sept. 15, 2003).
On August 25, 2003, BREDL filed a hearing request and petition to intervene in this license amendment proceeding. See Blue Ridge Environmental Defense Leagues Hearing Request and Petition to Intervene (August 25, 2003). On October 21, 2003, BREDL filed a supplemental petition containing nine proposed contentions regarding safety and environmental issues. See Blue Ridge Environmental Defense Leagues Supplemental Petition to Intervene (October 21, 2003). On March 3, 2004, after being given access to Dukes security submittal, BREDL filed contentions addressing security issues. See Blue Ridge Environmental Defense Leagues Contentions on Dukes Security Plan Submittal (March 3, 2004). The Board ruled on BREDLs proposed security contentions, admitted one contention, and certified to the Commission issues associated with BREDLs proposed Security Contention 1. See unpublished Memorandum and Order (Ruling on Security-Related Contentions) (April 12, 2004) (hereinafter April 12 Order). Subsequently, the Commission accepted the Boards certification and requested that the parties file briefs addressing the admissibility of Security Contention 1 and what the Board characterized as several pertinent related questions. CLI-04-11, slip op. at 7. For the reasons described below, Security Contention 1 is inadmissible. Additionally, the issues raised by the Board are inapposite to this proceeding.
DISCUSSION A.
BREDLs Security Contention 1 is Inadmissible Because it Fails to Meet the Regulatory Requirements Regarding Contention Pleading In Security Contention 1, BREDL alleged that:
Dukes revisions to its security plan and its exemption application are deficient because they fail to address the post-9/11 revised design basis threat for Category I nuclear facilities.
1 BREDL was referring to Nuclear Fuel Services and BWXT, two so-called Category I facilities. Although not specifically defined as such, Category I facilities are generally understood as facilities that possess formula quantities of strategic special nuclear material.
See 10 C.F.R. § 73.2 (Formula quantity means strategic special nuclear material in any combination in a quantity of 5,000 grams or more computed by the formula, grams = (grams contained U-235) + 2.5 (grams U-233 + grams plutonium). This class of material is sometimes referred to as a Category I quantity of material.).
2 At the time the Commission made the aforementioned statements, whether BREDL should be provided access to classified orders issued to Nuclear Fuel Services, Inc. and BWXT, which are Category I facilities, was not an issue squarely before the Commission. However, one can only assume that the Commissions conclusion (i.e., The current proceeding has nothing to do with the NRCs post-September 11 general security orders.) encompassed such orders and (continued...)
BREDLs Security Contentions at 3. As the basis for its contention, BREDL argued that, through Orders issued to the Category I facilities regarding the design basis threat (DBT),1 the NRC implicitly changed the statutory standard by which it assesses the adequacy of license amendment applications. Id. at 3-4. Dukes Submittal was inadequate, BREDL argued, because it failed to address the orders issued to the two Category I facilities. Id.
BREDLs contention is inadmissible. BREDL raises issues that are beyond the scope of this proceeding and, therefore, the contention fails to raise an issue of law or fact material to the proceeding as required by 10 C.F.R. § 2.714 (b)(2). Regarding the instant case, the Commission has already determined that:
The current proceeding has nothing to do with the NRCs post-September 11 general security orders. It is not these orders, but Dukes MOX-related security submittal, that details the particular security measures that will be taken as a consequence of the presence of MOX fuel assemblies at issue here.
All parties to this adjudication, including BREDL, may safely assume, as a baseline, that Dukes Catawba facility will comply with all applicable general security requirements, both those prescribed in NRC rules and those prescribed by NRC order. Thats not at issue in this MOX license amendment case.
Duke Energy Corp. (Catawba Nuclear Station, Units 1 and 2), CLI-04-06, slip op. at 9-10 (2004)
(emphasis added). The Commissions finding that the security orders issued post-September 11 are not material to this proceeding is unambiguous.2 In light of the Commissions clear statement, 2(...continued) excluded them from consideration in the instant proceeding.
3 Below, the Staff argued to the Board that the post 9/11 orders issued to Category I facilities could not be considered within the scope of this proceeding since orders are effective solely against the licensees to whom they are issued. Further, the Staff argued that to hold otherwise would require the Board to reach the ultimate conclusion that the Commission extended the applicability of these licensee-specific orders to all prospective Category I facilities.
See April 12 Order at 25 n.9.
the contention at issue, which asserts that Duke failed to address the security orders issued post-September 11 to Category I facilities, is immaterial and cannot be admitted in this proceeding.
Consequently, the Commission should reject BREDLs Security Contention 1 as failing to meet the requirements of 10 C.F.R. § 2.714(b)(2) that a contention must raise an issue of law or fact material to the proceeding.
B.
The Additional Issues Identified by the Board are Inapposite to this Proceeding In its discussion of the issues referred to the Commission for resolution, the Board questioned the continuing applicability of the Commissions statements (quoted above) about the scope of the instant proceeding excluding post 9/11 security orders. See April 12 Order at 24-33.
In this regard, the Boards order appears to raise two concerns that are addressed, in turn, below.
First, the Board appears to be uncertain whether the Commission intended to exclude from this proceeding the orders issued to Category I facilities after 9/11. The Board noted that at an unidentified point in the proceeding the orders may be properly within the scope of this adjudication.
See id. at 24-27. The Commissions Order, however, was clear. The Commission, without qualification, stated that the general security orders issued post 9/11 are not within the scope of this proceeding. See CLI-04-06 at 9. In addition to the specific reasons cited by the Commission for this conclusion, the irrelevance of these orders is supported by the fact that they were not issued to Duke. There is no reason to have any expectation that Duke is somehow required to address the contents of orders to which it is not privy and with which it is not obligated to comply.3 4 In fact, the Staff has completed its review of the security portion of Dukes LRA and has not imposed any additional measures not previously identified in Dukes Submittal.
See Attachment A.
The Board noted that Duke may be issued orders (assumedly similar to the post 9/11 orders issued to Category I facilities) in the future and this may cause the orders that the Staff issued to NFS and BWXT (Category I facilities) to be relevant and indispensable to the instant proceeding.
See April 12 Order at 27. However, the possibility that future orders may be issued is insufficient basis to support the admission of the subject contention in this proceeding. Even assuming, arguendo, that the Staff in the future would require Duke to adopt additional security measures while it possesses MOX LTAs, the nature of such requirement would be based on all pertinent considerations that apply specifically and particularly to Catawba. Such additional measures would be effected consistent with applicable law and regulation. However, as indicated earlier, a contention may not be admitted based on unknown, uncertain, and unidentifiable requirements that may or may not be imposed in the future.4 See Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), LBP-03-5, 57 NRC 233, 235-37 (2003) (denying intervenor an opportunity to file contentions on orders issued post 9/11)(citing Yankee Atomic Electric Co.
(Yankee Nuclear Power Station), CLI-96-7, 43 NRC 235, 274 (1996)).
Second, the Board raises the issue of whether Dukes statements, at argument, inviting the Board to judge the adequacy of BREDLs contentions in light of the post 9/11 orders issued to reactor licensees, contradict the Commissions statement in CLI-04-11 that Dukes security arrangements will not be measured against last years general security orders issued to reactors.
This issue, however, is inapposite to Security Contention 1 at issue in this proceeding. The contention at issue here does not refer to security orders issued to reactors. It refers exclusively to orders issued to Category I facilities, which, as discussed above, were not issued to Catawba.
Accordingly, the issue framed by the Board regarding potential conflicts between Duke counsels statements at oral argument and the Commissions statements in its order is irrelevant to the determination of whether Security Contention 1 should be admitted in this case. Additionally, as reflected in Attachment A, the Staff has not measured the acceptability of Dukes Submittal against the post 9/11 general security orders. Therefore, the issue articulated by the Board, regarding statements of counsel during argument, is immaterial to the instant proceeding and cannot support the admission of Security Contention 1.
CONCLUSION For the foregoing reasons, the Commission should rule that Security Contention I is inadmissible and that the additional issues identified by the Board are inapposite to this proceeding.
Respectfully submitted,
/RA/
Antonio Fernández Counsel for NRC Staff Dated in Rockville, Maryland this 5th day of May 2004
ATTACHMENT A
SAFETY EVALUATION BY THE OFFICE OF NUCLEAR SECURITY AND INCIDENT RESPONSE RENEWED FACILITY OPERATING LICENSE NPF-35 AND RENEWED FACILITY OPERATING LICENSE NPF-52 DUKE ENERGY CORPORATION, ET AL.
CATAWBA NUCLEAR STATION, UNITS 1 AND 2 DOCKET NOS. 50-413 AND 50-414
1.0 INTRODUCTION
By letter dated February 27, 2003, as supplemented by letters dated September 15 and 23, 2003; March 1 and 9, 2004; and April 13, 2004, Duke Energy Corporation (Duke) submitted a request for changes to the Catawba Nuclear Station, Units 1 and 2 (Catawba) operating license and physical security plan (PSP). These documents describe the additional security measures that will be implemented when four unirradiated mixed oxide (MOX) fuel lead test assemblies (LTAs) are received at Catawba, until placed into the reactor vessel.
The purpose of the LTA effort at Catawba is to confirm that the MOX fuel performs as expected in a nuclear power reactor. This effort is part of the Department of Energy (DOE) Surplus Plutonium Disposition Project, an ongoing plutonium (Pu) disposition program of the United States and the Russian Federation. The goal of this non-proliferation program is to dispose of surplus Pu from nuclear weapons by converting the material into MOX fuel and using that fuel in nuclear power reactors.
2.0 BACKGROUND
By letter dated September 15, 2003, Duke supplemented its February 27, 2003, application by submitting a proposed revision to the PSP and a request for exemptions from certain regulations in Title 10 of the Code of Federal Regulations, Part 11, Criteria and Procedures for Determining Eligibility for Access to or Control Over Special Nuclear Material and Part 73, Physical Protection of Plants and Materials, for the Catawba and McGuire stations. In accordance with the Nuclear Regulatory Commission (NRC) staffs letter dated October 31, 2003, the NRC staffs review and findings regarding the submittal dated September 15, 2003, as supplemented, are applicable only to the LTA program at Catawba.
Duke has requested relief from certain regulations in 10 CFR Part 11 and Part 73. Dukes request for exemptions from Part 11 was evaluated against the standard specified in 10 CFR 11.9, Specific Exemptions, and the request for exemptions from Part 73 was evaluated against the standard specified in 10 CFR 73.5, Specific Exemptions.
Pursuant to 10 CFR 73.6, Exemptions for certain quantities and kinds of special nuclear material, in part, nuclear power reactors licensed under 10 CFR Part 50 possessing special nuclear material (SNM) in certain forms are currently exempt from the physical protection requirements of 10 CFR 73.20, General performance objective and requirements, 73.25, Performance capabilities for physical protection of strategic special nuclear material in transit, 73.45, Performance capabilities for fixed site physical protection systems, and 73.46, Fixed site physical protection systems, subsystems, components, and procedures, and thus are not subject to the requirements of 10 CFR 11.11, General requirements. The specific forms of SNM at power reactors that are exempt include: (1) uranium enriched to less than 20-percent in the uranium-235 isotope, (2) SNM that is not readily separable from other nuclear material and which has an external dose rate of 100 rem per hour at a distance of 3 feet, (3) SNM in a quantity not exceeding 350 grams of uranium-235, uranium-233, plutonium, or any combination thereof, and (4) SNM that is being transported by the DOE transport system. The fresh MOX LTAs will not meet the exemption criteria stated in 10 CFR 73.6 because the Pu content in the MOX fuel will exceed 350 grams. Consequently, in accordance with the requirements in 10 CFR 73.2, Definitions, the material in the fresh MOX LTAs is a formula quantity of strategic special nuclear material (SSNM) due to the Pu content.
3.0 TECHNICAL EVALUATION
The NRC staff reviewed the proposed exemptions using information provided in Dukes license amendment request that included Revision 16 of the Duke Power Company Nuclear Security and Contingency Plan (Physical Security Plan (PSP)), Section 13.3; and Dukes responses to staff requests for additional information. To determine whether the specific exemptions should be granted, the staff utilized the criteria specified in the Review Plan for Evaluating the Physical Security Protection Measures Needed for Mixed Oxide Fuel and Its Use in Commercial Nuclear Power Reactors, dated January 29, 2004. The NRC staff review was consistent with the Commission Memorandum and Order, CLI-04-06, dated February 18, 2004. The NRC staff assumed as a baseline, that the Catawba facility will comply with all applicable general security requirements, both those prescribed in NRC rules and those prescribed by NRC order.
Specifically, the NRC staff reviewed the appropriate heightening of security measures necessitated by the proposed presence of MOX LTAs at Catawba. The NRC staff found that the MOX material, while technically meeting the criteria of a formula quantity, is not attractive to potential adversaries from a proliferation standpoint due to its low Pu concentration, composition, and form (size and weight). The MOX fuel consists of Pu oxide particles dispersed in a ceramic matrix of depleted uranium oxide with a Pu concentration of less than six weight percent. The MOX LTAs will consist of conventional fuel assemblies designed for a commercial light-water power reactor that are over 12 feet long and weigh approximately 1500 pounds. Therefore, the MOX LTAs represent a significantly less attractive theft or diversion target, from a proliferation standpoint, as compared to the materials at the Category I fuel fabrication facilities, which 10 CFR 73.45 and 73.46 were primarily intended to address. A large quantity of MOX fuel and an elaborate extraction process would be required to yield enough material for use in an improvised nuclear device or weapon.
4.0 CONCLUSION
Based on its review, the NRC staff found that the proposed additional protective measures will provide enhanced physical security for MOX LTAs, beyond those measures that are currently in place for low-enriched uranium fuel.
Pursuant to 10 CFR 11.9, the requested exemptions are authorized by law and will not constitute an undue risk to the common defense and security. In addition, pursuant to 10 CFR Part 73.5, the exemptions are authorized by law, will not endanger life or property or the common defense and security, and are otherwise in the public interest. Therefore, the staff found the requested exemptions from the requirements of 10 CFR Parts 11 and 73 to be acceptable for the MOX LTA program at Catawba Nuclear Station, Units 1 and 2. In addition, the staff approves the proposed revision to the licensee PSP, dated April 13, 2004.
5.0 REFERENCES
1.
Letter K.L. Heitner, NRC, to R.O. Williams, Jr., Fort St. Vrain Nuclear Generating Station -
Exemption from Recently Enacted Safeguards Requirements, dated January 19, 1989.
2.
Letter, M.S. Tuckman, Duke, to NRC, Revision 16 to Duke Energy Corporation Physical Security Plan and Request for Exemption from Certain Regulatory Requirements in 10 CFR 11 and 73 to Support MOX Fuel Use, dated September 15, 2003.
3.
Letter, M.S. Tuckman, Duke, to NRC, Catawba Units 1 and 2, McGuire, Units 1 and 2, Mixed Oxide Fuel Lead Assembly Licensee Amendment Request, dated September 23, 2003.
4.
Letter, R.E. Martin, NRC, to M.S. Tuckman, Duke, William B. McGuire Nuclear Station, Units 1 and 2 and Catawba Nuclear Station, Units 1 and 2 re: Mixed Oxide Lead Fuel Assemblies, dated October 31, 2003.
5.
Letter, J.W. Shea, NRC, to G.M. Tracy, NRC, Review Plan for Evaluating the Physical Security Protection Measures Needed for Mixed Oxide Fuel and Its Use in Commercial Nuclear Power Reactors, dated January 29, 2004.
6.
Letter, R.E. Martin, NRC, to H.B. Barron, Duke, Catawba Nuclear Station, Units 1 and 2 -
Request for Additional Information re: Mixed Oxide Lead Fuel Assemblies, dated January 30, 2004.
7.
Nuclear Regulatory Commission Memorandum and Order, CLI-04-06, dated February 18, 2004.
8.
Letter, H.B. Barron, Duke, to NRC, Catawba Nuclear Station, Units 1 and 2, Response to Request for Additional Information Mixed Oxide Fuel Lead Assemblies (Security) dated March 1, 2004.
9.
Letter, H.B. Barron, Duke, to NRC, Duke Energy Corporation Catawba Nuclear Station Units 1 & 2, Docket Nos. 50-413, 50-414 Response to Request for Additional Information, dated March 9, 2004.
- 10. Letter, H.B. Barron, Duke, to NRC, Duke Energy Corporation Catawba Nuclear Station Units 1 & 2, Docket Nos. 50-413, 50-414 Response to Request for Additional Information (TAC Nos. MB7863, MB7864) Mixed Oxide Fuel Lead Assemblies (Security), dated April 13, 2004.
Principle Contributors: S. Cross, NSIR/FCSSPS A. Garrett, NSIR/FCSSPS A. Tardiff, NSIR/RSS M. Burrell, NSIR/LPSS Date: May 5, 2004
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of
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DUKE ENERGY CORPORATION
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Docket Nos. 50-413-OLA
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50-414-OLA
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(Catawba Nuclear Station
)
Units 1 and 2)
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CERTIFICATE OF SERVICE I hereby certify that copies of NRC STAFF'S RESPONSE TO THE COMMISSION'S APRIL 21, 2004 ORDER RELATING TO CERTIFIED QUESTION REGARDING BREDL SECURITY CONTENTION 1 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 5th day of May, 2003.
Ann Marshall Young, Chair * **
Administrative Judge Atomic Safety and Licensing Board Panel Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (E-mail: AMY@nrc.gov)
Anthony J. Baratta * **
Administrative Judge Atomic Safety and Licensing Board Panel Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (E-mail: AJB5@nrc.gov)
Thomas S. Elleman **
Administrative Judge Atomic Safety and Licensing Board Panel 5207 Creedmoor Rd. #101 Raleigh, NC 27612 (E-mail: elleman@eos.ncsu.edu)
Office of the Secretary * **
ATTN: Docketing and Service U.S. Nuclear Regulatory Commission Mail Stop: O-16C1 Washington, D.C. 20555 (E-mail: HEARINGDOCKET@nrc.gov)
Office of Commission Appellate Adjudication*
Mail Stop: O-16C1 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Atomic Safety and Licensing Board Panel Adjudicatory File*
U.S. Nuclear Regulatory Commission Mail Stop: O-16C1 Washington, DC 20555 Diane Curran, Esq.* **
Harmon, Curran, Spielberg
& Eisenberg, L.L.P.
1726 M Street, N.W., Suite 600 Washington, DC 20036 (E-mail: dcurran@harmoncurran.com)
Lisa F. Vaughn, Esq **
Legal Department Mail Code - PB05E Duke Energy Corporation 426 S. Church Street (EC11X)
Charlotte, NC 28201-1006 (E-mail: lfVaughn@duke-energy.com)
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)
/RA/
Antonio Fernández Counsel for NRC Staff