ML033570434

NRC Staffs Response to Boards Question Regarding Executive Order 12114

ML033570434
Person / Time
Site:	Catawba
Issue date:	12/12/2003
From:	Fernandez A 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 7141
Download: ML033570434 (9)

Text

December 12, 2003 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 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 (Catawba Nuclear Station, Units 1 and 2)

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NRC STAFF'S RESPONSE TO BOARD'S QUESTION REGARDING EXECUTIVE ORDER 12114 INTRODUCTION At the Pre-hearing Conference in the instant case the Presiding Officer asked the NRC staff (Staff) a question regarding the applicability of Executive Order 12114 (E.O. 12114) in this proceeding. See Tr. at 411-12,543-44,547. Pursuant to the Board's Order of December 8,2003, the Staff hereby files its response to the Board's question concerning E.O. 12114.

DISCUSSION The Presiding Officer asked the Staff how the Commission addressed or approached the requirements of E.O. 12114. See Tr. at 544,547. E.O. 12114 was issued by President Carter on January 4,1979. See 44 Fed. Reg.1957 (1979)(hereinafter "Order") (Attachment A). The Order requires, among other things, "Executive Branch agencies to prepare an environmental assessment of nuclear reactorexports...." Westinghouse Elec. Corp. (Export to the Phillippines),

CLI-80-14,11 NRC 631, 643 (1980) (Opinion of Commissioners Kennedy and Hendrie) (emphasis added). The instant case, however, does not involve the export of a nuclear reactor. Tangentially, this case involves the shipment of nuclear materials pursuant to an NRC-issued export license-an action specifically exempted from the Order's requirements. See Section 2-5(v) of the Order.

Specifically, the Order states that "export licenses or permits or export approvals, and actions relating to nuclear activities except actions providing to a foreign nation a nuclear production or utilization facility" are exempt from the Order. Id. Therefore, the Order, by its own terms, does not apply to the Department of Energy's Request to export plutonium for fabrication of the mixed oxide lead test assemblies and the Commission need not consider it with respect to this action.

Respectfully submitted,

,Antonio F rnandez

/ Counsel for the NRC staff Dated at Rockville, Maryland this 12Ih day of November, 2003

Attachment A

EXECUTIVE ORDERS is 1Sg program of the President.

When such report or plan Is thereafter sub-tion mitted to the Congress, or to any committee or member thereof, It shall ces.

Include a statement of the advice received from the Office of Manage-and ment and Budget.

1-108.

Agency submissions to the Office of Management and Budget each of the reports, proposals or plans reviewed pursuant to this Order shall able be accompanied by a statement of the findings transmitted to the agency ton-head.

1-109.

Executive Order No. 9384 of October 4. 1943, as amended, Is pro-revoked.

tan-JIfln CARTER ual.

THE %hIT'TE Hlousr.

and Janluar 4, 1979.

ride zde-

. of No. 12114 r to Jan. 4, 1979, 44 F.R. 1957 or sted ENVIRONMENTAL EFFECTS ABROAD OF MAJOR FEDERAL ACTIONS tC By virtue of the authority vested In me by the Constitution and the laws the of the United States, and as President of the United States, In order to S.

further environmental objectives consistent with the foreign policy and I of national security policy of the United States, It Is ordered as follows:

I of Section 1.

scal 1-1.

Purpose and Scope. The purpose of this Executive Order is to en-Isa1.

able responsible officials of Federal agencies having ultimate responsibili-tsahe ty for authorizing and approving actions encompassed by this Order to be the informed of pertinent environmental considerations and to take such con-oing siderations into account, with other pertinent considerations of national on-policy in making decisions regarding such actions. While based on nde-pendent authority this Order furthers the purpose of the National Envi-the ronmental Policy Act and the Marine Protection Research and Sanctuaries the Act and te Deepwater Port Act consistent with the foreign policy and ade-national security policy of the United States, and represints the United ys States government's exclusive and complete determination of the proce-dural and other actions to be taken by Federal agencies to further the pur-sble pose of the National Environmental Policy Act. with respect to the en-.

ler-vironment outside the United States, its territories and possessions.

Sec. 2.

oved 2-1.

Agency Procediues.

Every Federal agency taking major Federal actions encompassed hereby and not exempted herefrom having significant ires effects on the environment outside the geographical borders of the United States and its territories and possessions shall within eight months after ntal the effective date of this Order have In effect procedures to implement this Order. Agencies shall consult with the Department of State and the Coun-in-cil on Environmental Quality concerning such procedures prior to placing them In effect.

not 2-2.

Inforinntion Exchange. To assist In effectuating the foregoing pur-not pose, the Department of State and the Council on Environmental Quality not in collaboration with other nterested Federal agencies and other nations Lne shall conduct a program for exchange on a continuing basis of information concerning the environment.

The objectives of this program shall be o ttee provide Information for use by decisionniakers. to heighten awareness of and interest In environmental concerns and, as appropriate, to facilitate gets environmental cooperation with foreign nations.

for 2-3. Actions Included.

Agencies in their procedures under Section 2-1 the shall establish procedures by which their officers having ultimate responsl-the billty for authorizing and approving actions in one of the following cate-3269

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.~ ~ ~ ~ ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~H

EXECUTIVE ORDERS gorles encompassed by this Order. take Into consideration In making deci-sions concerning such actions, a document described in Section 2-4(a):

(a) major Federal actions significantly affecting the environment of the global commons outside the jurisdiction of any nation (e. g.. the oceans or Antarctica);

(b) major Federal actions significantly affecting the environment of a foreign nation not participating with the United States and not otherwise Involved In the action; (c) major Federal actions significantly affecting the environment of a foreign nation which provide to that nation:

(1) a product, or physical project producing a principal product or an emission or effluent, which is prohibited or strictly regulated by Federal law In the United States because Its toxic effects on the environment cre-ate a serious public health risk; or (2) a physical project which In the United States Is prohibited or strictly regulated by Federal law to protect the environment against radioactive substances.

(d) major Federal actions outside the United States, Its territories and possessions which significantly affect natural or ecological resources of global importance designated for protection under this subsection by the President, or, In the case of such a resource protected by international agreement binding on the United States, by the Secretary of State.

ec.

ommendations to the President under this subsection shall be accompanied by the views of the Council on Environmental Quality and the Secretary of State.

2-4.

plihable' P'rocaaedurem.

(n) There are the following types or dlocn-ilputs o be sed In connection with actions described In Section 2-3:

11 envIronmental Impact tatements (ncluding generic. program anti specific stateluents);

(it) bilateral or multilateral environmental tudies, relevant or related to the proposed action, by the United States and one or more foreign na-tions, or by an international body or organlZatlon In which the United States Is a member or participant; or (111) concise reviews of the environmental Issues Involved, Including en-vironmental assessments, summary environmental analyses or ther np-propriate documents.

(b) Agencies shall In their procedures provide for preparation or docu-ments described In S. tion 2-4(a), with respect to actions described In Seetion 2-3 as follows:

(1) for effects described In Section 2-3(a), an environmental Impnct statement described In Section 2-4 (a) (I);

(11) for effects described In Section 2-3b) n document described n Sec-tion 2-4 a) ()

or (111). as determined by the agency:

(i1) for effects described in Section 2-3(c) a document described In Sec-tlon 2-4 (a) (11) or (i).

as determined by the agency; (tv) for effects described in Section 2-3(di a document escribe In Section 2-4 (a) (1), (it) or (l).

as determined by the agency.

Such procedures may provide that an agency need not prepare a new document when a document described In Section 2-4(a) already exists.

(c) Nothing In this Order shall serve to Invalidate any existing regula-tions of any agency which have been adopted pursuant to court order or pursuant to judicial settlement of any case or to prevent any agency from providing In Its procedures for measures In addition to those provided for herein to further the purpose of the National Environmental Policy Act and other environmental laws, Including the Marine Protection Research and Sanctuaries Act and the Deepwater Port Act. consistent with the for-eign and national security policies of the United States.

(d) Except as provided In Section 2-5(b). agencies taking action encom-passed by this Order shall, as soon as feasible, Inform other Federal agen-3270 cles witl prepare(

Agenclei provislo accordal mental c

n ordei shall pri agencies 2-3. E the follo (I) acti.

United S (ii) acti (i11) act net otl action oc (lv) Int.

(v) expo nuclear productl 1954. as (vi) vot tions:

(vil) die (b) Age provide blity of tons, wh (I) enat (11) avol appearan (tit) ens (1) dipla (2) lnte (3) neeC (4) nati (5) difftl meaningf (6) the cislon to (c) Ager cluslons; tion (a) stances, t ty sensiti ditional Departmr (d) The Section 2-Sec. 3.

S-1.

RII Ing Interi effects of terrItoriet create a c4 3-2.

Fo communlc mental ag der.

EXECUTIVE ORDERS cles with relevant expertise of the availability of environmental documents g deci prepared under this Order.

(a)th Agencies n their procedures under Section 2-1 shall make appropriate oceans provision for determining when an affected nation shall be informed In accordance with Section 3-2 of this Order of the availability of environ-it of a mental documents prepared pursuant to those procedures.

terwise In order to avoid duplication of resources, agencies In their procedures shall provide for appropriate utilization of the resources of other Federal it of a agencie:i with relevant environmental Jurisdiction or expertise.

2-5.

Fxemptions and Consideiations.

(a) Notwithstanding Section 2-3.

or an the foll wing actions are exempt from this Order:

Federal (i) acti3ns not having a significant effect on the environment outside the

!nt cre-United Etates as determined by the agency; (11) act'ons taken by the President; strictly (i1) actions taken by or pursuant to the direction of the President or Cab-

.oactive Inet offirer when the national security or Interest Is involved or when the action occurs In the course of an armed conflict; le and (iv) intelligence activities and arms transfers; ies and (vI export licenses or permits or export approvals, and actions relating to rces of nuclear setivitles except actions providing to a foreign nation a nuclear by the productioi or utilization facility as defined In the Atomic Energy Act of

.ational 1954, as amended, or a nuclear waste management facility; flee lvi) vote3 and other actions in nternational conferences and organiza-apanled tIons:

cretary (vii) disaster and emergency relief action.

(b) Agency procedures under Section 2-1 Implementing Section 2-4 may r dnct-provide for appropriate modifications In the contents, timing and avalla-

-3:

bility of ocuments to other affected ledleral agencies and affected na-ni and tions, wheie necessary to:

i1) enable the agency to decide and act promptly as and when required; related (11) avoid adverse Impacts on foreign relations or Infringement In fact or Ign na-appearance of other nations' sovereign responsibilities, or United (il) ensure appropriate reflection of:

(1) diplomatic factors; Ing en.

(2) international commercial, competitive and export promotion factors:

ier np-(3) needs for governmental or commercial confidentiality; (4) national security considerations; r docu-(5) difficulties of obtaining information and agency ability to analyze Ibed in meaningfull) environmental effects of a proposed action; and (6) the degree to which the agency Is Involved In or able to affect a de-impaet cision to be made.

(c) Agency rocedure under Section 2-1 may provide for categorical ex-fn Sec-clusions ard for such exemptions in addition to those specified In subsec-tion (a) of this Section as may be necessary to meet emergency circum-In Sec-stances, ituations Involving exceptional foreign policy and national securi-ty sensitivities and other such special circumstances.

In utilizing such ad-hed In ditional eemptions agencies shall. as soon as feasible, consult with the Department of State and the Council on Environmental Quality.

a new (d) The povisions of Section 2-5 do not apply to actions described In lists.

Section 2-1 (a) unless permitted by law.

regula-Sec. 3.

der or 3-1.

flights of Action. This Order Is solely for the purpose of establish-y from ing Internal procedures for Federal agencies to consider the significant led for effects of their actions on the environment outside the United States, Its icy Act territories a-id possessions, and nothing n this Order shall be construed to

?search create a cause of action.

he for-3-2. Foreign Relations.

The Department of State shall coordinate all communications by agencies with foreign governments concerning environ-encom-mental agreements and other arrangements in implementation of this Or-I agen-..

der.

3271

EXECUTIVE ORDERS

38. Multi-Agency Actions.

Where more than one ederal agency is 1-104.

involved in an action or program, a lead agency, as determined by the disinter agencies involved, shall have responsibility for mplementation of this Intermen Order.

bers of

.3-4. Certain Terms. For purposes of this Order, "environment" means requests the natural and physical environment and excludes social, economic and the Unit other environments: and an action significantly affect te environment 1-105 If it does significant harm to the environment even though on balance the disintern agency believes the action to be beneficial to the environment. Te term mains re "export approvals" In Section 2-5 a) Iv) does not mean r Include direct It reque loans to finance exports.

America.

141.

M~l3tiple nipacts.

If n major Federal action having effects on the bility of environment of the United States or the global commons requires prepara-provided tlion of an environmental mpact statement, and f the action also as er.

suant to fects on the environment of.a foreign nation, an environmental Impact 1-106.

statement need not be prepared with respect to the effects on the environ-

feasible, nient of the foreign nation.

citizen b JIMMY CARTER of kin THE WinTE lorsE.

United S Jtalhnury, 4. 1979.

(b) The buried I the dec No. 12115

writing, cation, e Jan.

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that I Jan. 19, 1979. 44 F.R. 4645 cemeter.

(c) The PERMANENT AMERICAN CEMETERY IN THE REPUBLIC OF PANAMA ceased v By the authority vested In me as President by the Constitution and the laws Inter an of the United States of America. including Section III of the Act of March a cemet'

4. 1923 (42 Stat. 1509). as amended (36 U.S.C. 132), and to Implement of kin sc the Intent of the United States Senate (124 Cong. Rec. S.857 of Mtarch Is.

(d) Thi 19 78) as set forth by Reservations (1 ) and (3) to the Resolution of Ratifi-peri and cation of the Treaty Concerning the Permanent Neutrality and Operation periodic of the Panama Canal. It is hereby ordered as follows:

of kin t

-IlnI.

The Secretary of State shall take all appropriate steps to complete, 1-107.

prior to the date or entry Into force of the Treaty Concerning the Perma-of t e e!

nent Neutrality and Operation of the Panama Canal. hereinafter referred tiong, t to as the Neutrality Treaty, the negotiations which have begun with the t1 C.

Tlepublic of Panama for an agreement under which the United States of America would, upon te (late of entry into force of such agreement and of the r thereafter, administer as a permanent American cemetery. such part of ensuree Corozal Cemetery as encompasses the remains of citizens of the United opee es States of America.

9objects 1-102.

Subject to the conclusion of the agreement referred to In Section (a) G"N 1-101 of this Order, the American Battle Monuments Commission shall ad-determi minister that part of Corozal Cemetery which encompasses the remains of o a pa citizens of the United States of America, In accordance with the terms of I

(b) "IW the agreement with the Republic of Panama.

mother 1-103.

The Governor of the Canal Zone shall, to the extent funds are available, disinter from Mount Hope Cemetery. before entry Into force of THE W the Neutrality Treaty, and reinter In Corozal Cemetery the remains of United States citizens, and the remains of members or their mmediate family that are buried with them.

The Governor shall not remove from Mount Hope Cemetery the remains of any such person whose next of kin timely requests in writing that such remains not be disinterred. The Governor shall transport to the United States for reinterment the remains of any such person whose next of kin timely requests In writing that such remains be transported to the United States for reinterment.

3272

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of DUKE ENERGY CORPORATION (Catawba Nuclear Station Units 1 and 2)

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Docket Nos. 50-413-OLA 50-414-OLA CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFFS RESPONSE TO BOARD'S QUESTION REGARDING EXECUTIVE ORDER 12114,' 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 Commission's internal mail system; and by e-mail as indicated by a double asterisk ("), this 120 day of December, 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 Anthony J. Baratta***

Administrative Judge Atomic Safety and Licensing Board Panel Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Thomas S. Elleman**

Administrative Judge Atomic Safety and Licensing Board Panel 5207 Creedmoor Rd. #101 Raleigh, NC 27612 Office of the Secretary**

ATTN: Docketing and Service U.S. Nuclear Regulatory Commission Mail Stop: 0-1 6C1 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 II 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)

Mary Olson*

Director of the Southeast Office Nuclear Information and Resource Service 729 Haywood Road, 1-A P.O. Box 7586 Asheville, NC 28802 (E-mail: nirs.se mindspring.com)

Paul Gunter*

Nuclear Information and Resource Service 1424 160 St. N.W.

Suite 404 Washington, D.C. 20026 (E-mail: pgunter@nirs.org)

Lisa F. Vaughn, Esq.**

Legal Department Mail Code - PB05E Duke Energy Corporation 426 S. Church Street (EC11X)

Charlotte, NC 28201-1006 (E-mail: fVaughn~duke-energy.com)

David A. Repka, Esq.**

Anne W. Cottingham, Esq.*'

Winston & Strawn LLP 1400 L Street, N.W.

Washington, D.C. 20005-3502 (E-mail: drepkaGwinston.com acotting @winston.com) ntonio Fern ndez Counsel for NRC Staff