SAFEGUARDS INFORMATION

 

 SAFEGUARDS INFORMATION Enclosure 1

Document transmitted herewith contains sensitive

unclassified information. When separated from

Attachment 1, this document is decontrolled.

Warning: Violation of Section 147 of the Atomic

Energy Act, “Safeguards Information” is subject to

Civil and Criminal Penalties.

 UNITED STATES OF AMERICA

NUCLEAR REGULATORY COMMISSION

In the Matter of )

 ) Docket No. 72-45

DUKE ENERGY CORPORATION ) EA 05-084

CATAWBA NUCLEAR STATION )

INDEPENDENT SPENT FUEL STORAGE )

INSTALLATION )

4800 CONCORD ROAD )

YORK, SC 29745-9635 )

ORDER MODIFYING LICENSE

(EFFECTIVE IMMEDIATELY)

 I

Duke Energy Corporation (Duke Energy) has been issued a general license by the U.S.

Nuclear Regulatory Commission (NRC or the Commission) authorizing storage of spent fuel in

an independent spent fuel storage installation (ISFSI) in accordance with the Atomic Energy Act

of 1954, 10 CFR Part 50, and 10 CFR Part 72. This Order is being issued to Duke Energy who

has identified near-term plans to store spent fuel in an ISFSI under the general license

provisions of 10 CFR Part 72. The Commission regulations at 10 CFR 72.212(b)(5) and

10 CFR 73.55(h)(1) require Duke Energy to maintain safeguards contingency plan procedures

in accordance with 10 CFR Part 73, Appendix C. Specific safeguards requirements are

contained in 10 CFR 73.55.
1

 Attachment 1 contains SAFEGUARDS INFORMATION and will not be released to the

public. 

2

II

On September 11, 2001, terrorists simultaneously attacked targets in New York, NY,

and Washington, DC, utilizing large commercial aircraft as weapons. In response to the attacks

and intelligence information subsequently obtained, the Commission issued a number of

Safeguards and Threat Advisories to its licensees in order to strengthen licensees’ capabilities

and readiness to respond to a potential attack on a nuclear facility. The Commission has also

communicated with other Federal, State, and local government agencies and industry

representatives to discuss and evaluate the current threat environment in order to assess the

adequacy of security measures at licensed facilities. In addition, the Commission has been

conducting a comprehensive review of its safeguards and security programs and requirements.

As a result of its consideration of current safeguards and security plan requirements, as

well as a review of information provided by the intelligence community and other governmental

agencies, the Commission has determined that certain compensatory measures are required to

be implemented by licensees as prudent, interim measures, to address the current threat

environment in a consistent manner throughout the nuclear ISFSI community. Therefore, the

Commission is imposing requirements, as set forth in Attachment 11

 of this Order, on Duke

Energy who has indicated near-term plans to store spent fuel in an ISFSI under the general

license provisions of 10 CFR Part 72. These interim requirements, which supplement existing

regulatory requirements, will provide the Commission with reasonable assurance that the public

health and safety and common defense and security continue to be adequately protected in the

current threat environment. These requirements will remain in effect until the Commission

determines otherwise. 

The Commission recognizes that some measures may not be possible or necessary, or

may need to be tailored to accommodate the specific circumstances existing at Duke Energy’s
3

facility to achieve the intended objectives and avoid any unforeseen effect on the safe storage

of spent fuel.

In order to provide assurance that licensees are implementing prudent measures to

achieve a consistent level of protection to address the current threat environment, the

Commission concludes that security measures must be embodied in an Order consistent with

the established regulatory framework. Duke Energy’s general license issued pursuant to

10 CFR 72.210 shall be modified to include the requirements identified in Attachment 1 to this

Order. In addition, pursuant to 10 CFR 2.202, the Commission finds that in light of the common

defense and security matters described above, the public health, safety, and interest require

that this Order be effective immediately.

III

Accordingly, pursuant to Sections 103, 104, 161b, 161i, 161o, 182, and 186 of the

Atomic Energy Act of 1954, as amended, and the Commission's regulations in 10 CFR 2.202

and 10 CFR Parts 50, 72, and 73, IT IS HEREBY ORDERED, EFFECTIVE IMMEDIATELY,

THAT YOUR GENERAL LICENSE IS MODIFIED AS FOLLOWS:

A. Duke Energy shall, notwithstanding the provisions of any Commission regulation or

license to the contrary, comply with the requirements described in Attachment 1 to this

Order except to the extent that a more stringent requirement is set forth in their security

plan. Duke Energy shall immediately start implementation of the requirements in

Attachment 1 to the Order and shall complete implementation before October 31, 2005,

or the first day that spent fuel is initially placed in the ISFSI, whichever is later.

B. 1. Duke Energy shall, within twenty (20) days of the date of this Order, notify the

Commission: (1) if they are unable to comply with any of the requirements

described in Attachment 1, (2) if compliance with any of the requirements is
4

unnecessary in their specific circumstances, or (3) if implementation of any of the

requirements would cause the licensee to be in violation of the provisions of any

Commission regulation or the facility license. The notification shall provide the

licensee’s justification for seeking relief from or variation of any specific

requirement. 

2. If Duke Energy considers that implementation of any of the requirements

described in Attachment 1 to this Order would adversely impact the safe storage

of spent fuel, Duke Energy must notify the Commission, within twenty (20) days

of this Order, of the adverse safety impact, the basis for its determination that

the requirement has an adverse safety impact, and either a proposal for

achieving the same objectives specified in the Attachment 1 requirement(s) in

question, or a schedule for modifying the facility to address the adverse safety

condition. If neither approach is appropriate, Duke Energy must supplement its

response to Condition B.1 of this Order to identify the condition as a requirement

with which it cannot comply, with attendant justifications as required in Condition

B.1. 

C. 1. Duke Energy shall, within twenty (20) days of the date of this Order, submit to

the Commission, a schedule for achieving compliance with each requirement

described in Attachment 1.

2. Duke Energy shall report to the Commission when they have achieved full

compliance with the requirements described in Attachment 1.

D. Notwithstanding the provisions of 10 CFR 72.212(b)(5), all measures implemented or

actions taken in response to this Order shall be maintained until the Commission

determines otherwise.
5

Duke Energy’s responses to Conditions B.1, B.2, C.1, and C.2, shall be submitted in

accordance with 10 CFR 72.4. In addition, submittals that contain Safeguards Information shall be properly

marked and handled in accordance with 10 CFR 73.21.

The Director, Office of Nuclear Material Safety and Safeguards may, in writing, relax or

rescind any of the above conditions upon demonstration by Duke Energy of good cause. 

 IV

In accordance with 10 CFR 2.202, Duke Energy must, and any other person adversely

affected by this Order may, submit an answer to this Order, and may request a hearing on this

Order, within twenty (20) days of the date of this Order. Where good cause is shown,

consideration will be given to extending the time to request a hearing. A request for extension

of time in which to submit an answer or request a hearing must be made in writing to the

Director, Office of Nuclear Material Safety and Safeguards, and the Director, Office of

Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555, and include a

statement of good cause for the extension. The answer may consent to this Order. Unless the

answer consents to this Order, the answer shall, in writing and under oath or affirmation,

specifically set forth the matters of fact and law on which the licensee or other person adversely

affected relies and the reasons as to why the Order should not have been issued. Any answer

or request for a hearing shall be submitted to the Secretary, Office of the Secretary of the

Commission, U.S. Nuclear Regulatory Commission, ATTN: Rulemakings and Adjudications

Staff, Washington, DC 20555. Copies also shall be sent to the Director, Office of Nuclear

Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555;

to the Director, Office of Enforcement at the same address; to the Assistant General Counsel

for Materials Litigation and Enforcement at the same address, to the Regional Administrator for
6

NRC Region II at 61 Forsyth Street SW, Suite 23T85, Atlanta, GA 30303, to the licensee if the

answer or hearing request is by a person other than the licensee. Because of potential

disruptions in delivery of mail to United States Government offices, it is requested that answers

and requests for hearing be transmitted to the Secretary of the Commission, either by means of

facsimile transmission to 301-415-1101, or by e-mail to hearingdocket@nrc.gov and also to the

Office of the General Counsel, either by means of facsimile transmission to 301-415-3725, or

by e-mail to OGCMailCenter@nrc.gov. If a person other than Duke Energy requests a hearing,

that person shall set forth with particularity the manner in which his interest is adversely

affected by this Order and shall address the criteria set forth in 10 CFR 2.714(d).

If a hearing is requested by Duke Energy or a person whose interest is adversely

affected, the Commission will issue an Order designating the time and place of any hearing. If

a hearing is held, the issue to be considered at such a hearing shall be whether this Order

should be sustained.

Pursuant to 10 CFR 2.202(c)(2)(i), Duke Energy may, in addition to demanding a

hearing, at the time the answer is filed or sooner, move the presiding officer to set aside the

immediate effectiveness of the Order on the grounds that the Order, including the need for

immediate effectiveness, is not based on adequate evidence but on mere suspicion, unfounded

allegations, or error.

In the absence of any request for hearing, or written approval of an extension of time in

which to request a hearing, the provisions specified in Section III above shall be final twenty

(20) days from the date of this Order without further order or proceedings. If an extension of

time for requesting a hearing has been approved, the provisions specified in Section III shall be 
7

final when the extension expires if a hearing request has not been received. AN ANSWER OR A REQUEST

FOR HEARING SHALL NOT STAY THE IMMEDIATE EFFECTIVENESS OF THIS ORDER. 

FOR THE NUCLEAR REGULATORY COMMISSION

/RA/

Margaret V. Federline, Acting Director

Office of Nuclear Material Safety

 and Safeguards

Dated this 5th day of May 2005.

Attachment 1: Interim Safeguards and Security 

 Compensatory Measures

 (Safeguards Information)