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II.FACTUAL BACKGROUND

Duke has filed an application for renewal of the licenses of its McGuire 1 & 2 nuclear power station in North Carolina and Catawba 1 & 2 nuclear power station in South Carolina.  NIRS timely filed a petition to intervene in the proceeding, and later filed contentions challenging the adequacy of Duke’s license application.  See Contentions of Nuclear Information and Resource Service (November 29, 2001).  The principal contention at issue on this appeal is NIRS Contention 1.1.2, which states that:   

The Petitioner contends that the Duke Energy license extension application has not realistically or fully analyzed and evaluated all structures, systems and components required for the protection of the public health and safety from deliberate acts of radiological sabotage. These unanalyzed systems, structures and components include but are not limited to the containment structure, fire protection systems and coolant water intake systems and electrical grid system as primary power supply to plant safety systems for the Catawba and McGuire units.

In the wake of the events of September 11, 2001, when the United States was violently attacked, the Nuclear Regulatory Commission appears to have increased concern about nuclear security. It must be noted that on many occasions prior to September 11, many different members of the public have attempted to bring nuclear security issues into focus. International press continues to report that nuclear power plants in the United States are explicitly targeted by Islamic extremist groups for acts of radiological sabotage and mass terrorism.  The Associated Press reported on October 24, 2001 in an article “Nuclear Liability Report Left Public” that FBI testimony in the Ramzi Yousef trial in the bombing of the 1993 bombing of the World Trade Center that Islamic extremists are being encouraged to target U.S. nuclear power stations as a high priority targets in a campaign of terrorism. [Hardcopy Exhibit 1, Associated Press, “Nuclear Liability Report Left Public,” John Solomon, October 24, 2001]

Duke must also be similarly aware of security concerns, but they have not moved to amend their license renewal application to reflect this awareness. Given the number of news reports that discuss this issue it is not credible that Duke Energy has not considered this. These reports have included a statement by Director General Mohamed El Baradei of the International Atomic Energy Agency on November 1, 2001 that an act of nuclear terrorism is “far more likely” than previously thought. This change of conditions must be factored into this proceeding in a more direct manner than only withholding documents from the intervenors.

It is of particular concern to the Petitioner and a significant point of contention that these issues were never considered in the original licensing proceeding and as such constitutes an age-related regulatory issue adversely affecting public health and safety. Indeed, 10CFR51(c) (3)(iv) states “the environmental report must contain any new and

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