ML043640338
| ML043640338 | |
| Person / Time | |
|---|---|
| Site: | Catawba  |
| Issue date: | 12/17/2004 |
| From: | Anthony Baratta, Elleman T, Austin Young Atomic Safety and Licensing Board Panel |
| To: | |
| Byrdsong A T | |
| References | |
| ASLBP No. 03-815-03-OLA, Docket Nos. 50-413-OLA, 50-414-OLA, RAS 9002 | |
| Download: ML043640338 (8) | |
Text
1[BREDL]s Motion to Amend Protective Order (Dec. 15, 2004) [hereinafter BREDL Motion].
This proceeding involves Dukes February 2003 application to amend the operating license for its Catawba Nuclear Station to allow the use of four mixed oxide (MOX) lead test assemblies at the station, as part of the U.S.-Russian Federation nuclear nonproliferation program to dispose of surplus plutonium from nuclear weapons by converting it into MOX fuel to be used in nuclear reactors. Letter from M.S. Tuckman, Executive Vice President, Duke Power, to NRC (Feb. 27, 2003). In memoranda and orders dated March 5 and April 12, 2004 (the latter sealed as Safeguards Information (SGI);
redacted version issued May 28, 2004), the Licensing Board granted BREDLs request for hearing and admitted various non-security-related and security-related contentions. LBP-04-4, 59 NRC 129 (2004);
LBP-04-10, 59 NRC 296 (2004); see also LBP-04-7, 59 NRC 259 (2004) (dismissing one contention admitted in LBP-04-4, on grounds of mootness); LBP-04-12, 59 NRC 388 (2004) (permitting Intervenor to utilize certain additional information in litigation of contention admitted in LBP-04-10). An evidentiary hearing has already been held on the one remaining non-security-related contention in the proceeding.
Tr. 2072-2708.
The matters addressed herein relate to the one admitted security contention of BREDL, Security Contention 5, which concerns a number of exemptions Duke seeks, as part of its application, from certain regulatory requirements found in 10 C.F.R. Part 73 for the physical protection of formula quantities of special nuclear material. The contention in question, in the form we admitted it in LBP 10, states:
Duke has failed to show, under 10 C.F.R. §§ 11.9 and 73.5, that the requested exemptions from 10 C.F.R. § 73.46, subsections (c)(1); (h)(3) and (b)(3)-(12); and (d)(9) are authorized by law, will not constitute an undue risk to the common defense and security, and otherwise would be consistent with law and in the public interest.
1 UNITED STATES OF AMERICA RAS 9002 NUCLEAR REGULATORY COMMISSION DOCKETED 12/17/04 SERVED 12/20/04 ATOMIC SAFETY AND LICENSING BOARD PANEL Before Administrative Judges:
Ann Marshall Young, Chair Anthony J. Baratta Thomas S. Elleman In the Matter of DUKE ENERGY CORPORATION (Catawba Nuclear Station, Units 1 and 2)
Docket Nos. 50-413-OLA, 50-414-OLA ASLBP No. 03-815-03-OLA December 17, 2004 MEMORANDUM and ORDER (Ruling on BREDL Motion to Amend Protective Order)
Blue Ridge Environmental Defense League {BREDL] has moved that we issue an additional amendment to a protective order issued in this case on December 15, 2003, governing the disclosure and use of protected information in this proceeding.1 The sole
LBP-04-10, 59 NRC at 352.
2BREDL Motion at 1.
3See BREDL Motion at 2; see also Transcript of December 17, 2004, morning telephone conference.
4See BREDL Motion at 3.
2 purpose of the proposed amendment is for BREDLs counsel to store exhibits to pre-filed testimony under appropriate protective measures in BREDL counsels office between December 17, 2004, and February 4, 2003 the first of these dates being the deadline for the filing of prefiled direct testimony and the second being the deadline for the filing of reply proposed findings of fact after the hearing on Security Contention 5, to be held January 10-14, 2004. BREDL requests the change, stating that it is necessary to allow BREDL a sufficient opportunity to review exhibits in preparation for the hearing....2 BREDL had earlier requested this during a closed session in this proceeding, and the parties had attempted to work together to resolve the issue, but this effort has not been successful.
With regard to BREDLs original request to keep the exhibits in counsels office, Mr. Bernard Stapleton of the Staff performed an inspection of BREDL counsels office to determine the adequacy of measures taken there to protect Safeguards information, and found that the measures are adequate.3 Subsequent to this inspection, however, NRC Staff counsel informed BREDL that its counsel would not be permitted to keep the exhibits at her office, and BREDLs motion now under consideration was then filed.4 During a telephone conference held December 17, 2004, the NRC Staff and Duke Energy Company [Duke] objected to BREDLs motion, emphasizing the especially sensitive nature of the documents at issue, and citing the case of Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2),
ALAB-410, 5 NRC 1398, 1406 (1977), for the proposition that in some cases, in addition to
5See Transcript of December 17, 2004 morning telephone conference.
6Diablo Canyon, 5 NRC at 1406.
7Id.
3 measures adequate for the protection of Safeguards Information, it may be desirable to limit locations at which an intervenor may examine sensitive documents.5 After hearing the arguments of counsel, we find that BREDLs request is a reasonable one, if this proceeding is to be conducted without further delay. We have consistently endeavored in this proceeding to move forward without undue delay, both to further the general desirability of conducting adjudication proceedings in a timely and efficient manner, and to accommodate as much as possible Dukes planning and schedule with regard to the proposed MOX lead test assemblies. The decision in Diablo Canyon indeed recognizes, in addition to indicating that it may be desirable to limit locations where sensitive materials may be examined, that this may result in a lengthened hearing.6 The Appeals Board in the case also noted that the Licensing Board is in the best position to determine the most appropriate circumstance in which [a document] may be viewed, and left it to the Board to formulate the exact terms and conditions of the order.7 We make our ruling in this matter in light of the concerns discussed in Diablo Canyon i.e., in view of the goals of protecting the security of very sensitive materials as well as taking into account the possibility of any lengthening of the hearing in this matter or any related delays and recognizing also the very reasonable and legitimate need of counsel to prepare its case adequately in order to participate in the proceeding and evidentiary hearing in a meaningful way. To be in a position of not being able to examine exhibits in preparation for the hearing or
8Although Duke counsel, at whose office the examination of such sensitive documents as are now at issue is currently conducted by BREDL counsel, has offered to make the office available on at least one weekend for BREDL counsel, no evening hours past 6:00 p.m. are provided, which, in view of customary counsel preparation practices on the part of many lawyers prior to evidentiary hearings, we find to be unreasonably limiting.
4 of proposed findings during evening hours as needed,8 and having to carry voluminous amounts of documents many of a sensitive nature themselves back and forth to opposing counsels office in order to prepare for the hearing and prepare proposed findings of fact and conclusions of law, would seem obviously to compromise BREDLs ability to prepare timely and meaningfully in this proceeding with regard to the litigation of Security Contention 5. BREDL has prepared up to this point using Duke counsels office for examination of relevant documents, and has requested that during the critical time period preceding, during and after the evidentiary hearing up through the preparation of proposed findings, it have more ready and meaningful access to the documents. We make our ruling taking into consideration the realities and need underlying this request, as well as the need to protect the very sensitive information at issue, and the need and desirability of ensuring that this proceeding can be litigated and concluded in a timely manner without further delay.
Part of the concern for proper handling of the security of sensitive materials that particularly concerns us with regard to BREDLs request is the desirability of avoiding risks associated with repeated transport of sensitive safeguards materials now in BREDLs possession back and forth to opposing counsels office. Transport back and forth of such material increases the likelihood of losing control of sensitive material and yet such transport, as argued by BREDL counsel, will be necessary if BREDL is to prepare for hearing and prepare proposed findings while having to examine relevant exhibits at opposing counsels office rather than in BREDL counsels own office, where other materials are kept and where most preparation will obviously occur.
5 Thus, to fulfill these three goals proper handling and protection of the security of very sensitive materials, avoiding delay, and permitting the meaningful participation of Intervenor BREDL in this proceeding we herein order, with regard to BREDLs request, amendment of the Protective Order to allow the holding of the exhibits at the law office of BREDLs counsel during the time period requested, with the following proviso:
A member of the NRC Administration Staff from the Division of Facilities and Security who is knowledgeable in physical security and handling and storage of safeguards material and who has been assigned to conduct an independent inspection of BREDL counsels office, finds, after such inspection and consultation with BREDL counsel, that BREDL counsel can effectively, with measures now in place along with any additional reasonable measures arrived at in consultation with BREDL counsel, ensure the effective safeguarding of the exhibits in question in her law office. The Board is informed that such a person will be able to perform the inspection in question on Tuesday morning, December 21, 2004.
The Board requests the Staff to coordinate this activity, and expects that in doing so the Staff will operate in good faith to ensure that appropriate measures are taken to separate the functions of the independent inspector from those of the Staff working on the Catawba proceeding, and that this, along with the provision to the inspector of the parties agreed description of the documents in question, will be sufficient to assure the appropriateness of the inspection. We expect BREDL and Duke counsel to cooperate with NRC Staff counsel in producing such a description of all parties anticipated exhibits. We also expectt BREDL counsel to operate in good faith to accommodate the inspection, and to work with the inspector regarding any reasonable additional recommended measures to ensure appropriate protection of the exhibits.
9Copies of this document were sent this date by internet e-mail to counsel for all parties.
6 Finally, we expect that all parties will cooperate in this matter as we have described, in order to avoid delay and ensure the meaningful furtherance of this proceeding, including the evidentiary hearing and related preparation for it and of proposed findings of fact and conclusions of law.
It is so ORDERED.
THE ATOMIC SAFETY AND LICENSING BOARD
/RA/
Ann Marshall Young, Chair ADMINISTRATIVE JUDGE
/RA/
Anthony J. Baratta ADMINISTRATIVE JUDGE
/RA/
Thomas S. Elleman ADMINISTRATIVE JUDGE Rockville, Maryland December 17, 20049
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of
)
)
DUKE ENERGY CORPORATION
)
Docket Nos. 50-413-OLA
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50-414-OLA (Catawba Nuclear Station, Units 1 and 2)
)
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing LB MEMORANDUM AND ORDER (RULING ON BREDL MOTION TO AMEND PROTECTIVE ORDER) have been served upon the following persons by deposit in the U.S. mail, first class, or through NRC internal distribution.
Office of Commission Appellate Adjudication U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Administrative Judge Ann Marshall Young, Chair Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Administrative Judge Anthony J. Baratta Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Administrative Judge Thomas S. Elleman Atomic Safety and Licensing Board Panel 5207 Creedmoor Rd., #101 Raleigh, NC 27612 Susan L. Uttal, Esq.
Antonio Fernández, Esq.
Shana Zipkin, Esq.
Office of the General Counsel Mail Stop - O-15 D21 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Henry B. Barron, Executive Vice President Nuclear Operations Duke Energy Corporation 526 South Church Street P.O. Box 1006 Charlotte, NC 28201-1006 Mary Olson Director of the Southeast Office Nuclear Information and Resource Service 729 Haywood Road, 1-A P.O. Box 7586 Asheville, NC 28802 Diane Curran, Esq.
Harmon, Curran, Spielberg
& Eisenberg, L.L.P.
1726 M Street, NW, Suite 600 Washington, DC 20036
2 Docket Nos. 50-413-OLA and 50-414-OLA LB MEMORANDUM AND ORDER (RULING ON BREDL MOTION TO AMEND PROTECTIVE ORDER)
David A. Repka, Esq.
Anne W. Cottingham, Esq.
Mark J. Wetterhahn, Esq.
Winston & Strawn LLP 1400 L Street, NW Washington, DC 20005 Lisa F. Vaughn, Esq.
Duke Energy Corporation Mail Code - PB05E 422 South Church Street P.O. Box 1244 Charlotte, NC 28201-1244 Paul Gunter Nuclear Information and Resource Service 1424 16th St., NW, Suite 404 Washington, DC 20036 Timika Shafeek-Horton, Esq.
Duke Energy Corporation Mail Code - PB05E 422 South Church Street Charlotte, NC 28242
[Original signed by Evangeline S. Ngbea]
Office of the Secretary of the Commission Dated at Rockville, Maryland, this 20th day of December 2004