ML16341C365
| ML16341C365 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 07/15/1980 |
| From: | Bishop C NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | CALIFORNIA, STATE OF |
| Shared Package | |
| ML16341C366 | List: |
| References | |
| ALAB-600, ISSUANCES-OL, NUDOCS 8007220092 | |
| Download: ML16341C365 (44) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD Richard S.
- Salzman, Chairman Dr.
W. Reed Johnson Thomas S. Moore
)
)
)
PACIFIC GAS AND ELECTRIC COMPANY
)
)
(Diablo Canyon Nuclear Power Plant,)
Units 1 6 2)
)
)
Docket. Nos.
50-275 OL 50-323 OL Mr. Bruce K. Norton, Phoenix, Arizona, for the R
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Mr. Yale I. Jones, San Francisco, California, for the San Luz.s Obispo Mothers for Peace, intervenor.
Mr. Herbert. H. Brown, Washington, D.C., for the Governor o
Ca
- a. ornia.
Messrs.
Jame's R. Tourte'llo'tte and William J.
0 mstea or e Nuc ear Regulatory Comma.s-sion staff.
MEMORANDUM AND ORDER July 15, 1980 (ALAB-600)
PROTECTIVE ORDER In our Second Prehearing Conference Orderwe directed 1/
applicant to grant access to a "sanitized" version of the Diablo 1/
Order. of.'April':ll','980, ALAB..592,.'ll: NRC '
P $03 i/i
tt II
Canyon physical security plan to intervenor's counsel and (potentially) its expert witness, subject to the terms of a protective order which incorporated an "affidavit of non-disclosure."
Clause 8(b) of that affidavit precluded one given access to the security plan from "publicly discuss[ing]
or disclos[ing] any protected information * *
- receive[d] by any means whatever."
Both the applicant and the intervenor sought Commission review, the former contending that no dis-closure of its security plan was warranted and the latter that the protective order was overly restrictive.
On April 21, 1980, the Commission stayed disclosure of the security plan pending its further order.
On June ll, 1980, the Commission denied applicant's petition, reaffi'rming "that intervenors in Commission proceed-ings may raise contentions relating to the adequacy of the applicant's proposed physical security arrangements, and that the Commission's regulations, 10 C.F.R. 2.790, contemplate that -sensitive information may be turned over to intervenors in NRC proceedings under appropriate protective order's." CLI-80-24, ll NRC (slip opinion at 2-3).
The Commission then directed PGGE to make the sanitized version of the se-curity plan available to the intervenor.
Ibid.
At the same time, the Commission accepted intervenor's argument that the restrictions on public discussion of pro-tected information in clause 8 (b) of the non-disclosure af-fidavit contravened the First. Amendment.
Nevertheless, it c'autioned that those subject to the protective order are "prohibited from corroborating the accuracy or inaccuracy of outside information by using protected information gained through the hearing process."
Id. at 'slip opinion at 4).
2.
The protective order and non-disclosure affidavit must be modified to reflect the Commission's ruling, but how we should do so is complicated by a disagreement.
Chairman Ahearne and Commissioner Hendrie took the position "that be-fore intervenors publicly disseminate protected information gained outside the hearing process they should be required to establish to the satisfaction of. *. *. " the Appeal Board * *
- that the information was in fact gained outside of the hearing process." ll NRC at 'slip opinion at 4).
Commissioners Gilinsky and Bradford, however, were opposed on the ground "that any such clearance procedure is an unconstitutional prior restraint." Ib'id.
(The remaining Commissioner whose
4 I
term has since expired -- had voluntarily recused himself.)
In light of this division, the Commission remanded the issue to us with instructions-to select one of those options on the basis of our reading of the law and to modify the protec-tive order and non-disclosure affidavit. accordingly.
11 NRC at (slip opinion at 4-5).
In response to our request for their views; the staff reported that it, the applicant and the intervenor were all prepared to stipulate (a) that clause 1(a) (2) of the non-disclosure affidavit be amended to define "protected informa-tion" as "information'b't'a'in'ed durin
'the coursef th'ese
'b'
'1 curity] plan" (new matter underscored).;
(b) that clause 8 (b) be deleted from that affidavit; and (c) that no further pro-tection of the confidentiality of the security plan was needed.~
By letter dated July 10th, however, intervenor's counsel advised us that, while intervenor was agreeable to items (b) and (c) of the stipulation as reported by the staff, item (a) did not correspond precisely to his understanding of 2/
Counsel for. the staff informed us by telephone on July 3
that he had spoken to Governor Brown's lead counsel who expressed no objections to the stipulation.
5
the stipulation.
(Apparently the stipulation was negotiated over the telephone.)
Intervenor's version appears in the margin below. The disagreement about the precise wording 3/
to one side, however, it is evident that the parties have opted for the approach favored by Commissioners Gilinsky and Bradford.
3.
We are surprised at the applicant's and staff's acquiescence in this position.
At the prehearing conference in San Luis Obispo on April 2nd and in their presentations to the Commission, they argued that far greater restrictions were needed to protect the security plan arguments that V
carried the day before us.
Be that as it may, we now face a narrower question:
whether those receiving the security plan may publicly dis-cuss protected information without first demonstrating to us 3/ "l.
As used in thi;s Affidavit,of Non-Disclosure (a)
'Protected Information's (1) any form of the physical security plan for the licensee's Diablo Canyon Nuclear Power Plant, Units 1 and 2; or (2) any, infor-mation obtained 'from 'ai'cant oi 'the
" Commission' virtuethe'se rocee-xn' wh'ich 'xs 'no't'the'rwise 'a'atter 'of ubl'a.c recordand who.'ch de'als'ith'r escrow.
es etaa.
s o t e secure.
an."-
(New matter underscored.)
'gt
that they obtained it outside the hearing process.
Whether or not such a demonstration could be required in some circum-stances, we do not write on a clean.slate.
The applicant 4/
and staff have performed a vol't'e'-'face.
They no longer con-tend it necessary to preclude public discussion of protected information before it is shown to come from outside sources.
We do not feel justified in imposing such a restraint on our own initiative.
Therefore, we will modify the non-disclosure affidavit essentially as the parties suggest.
In this con-
- nection, however, neither of the suggestions put forward pre-cisely reflect what the Commission's ruling intended.
The version transmitted by the staff is too broadly drawn. It does not exclude information obtained during the course of the proceeding bu't outside th'e hearin r'ocess.
On the other
- hand, we can envision circumstances in which protected informa-tion may be provided to A and not to B.
Intervenor's phrase-ology could be read to permit public disclosure of that 4/
For example, such a restraint might be appropriate where (1) the information would likely be classified were it of government rather than private origin; (2) public disclosure could jeopardize the physical security of a nuclear power plant and subject the public to extreme danger; (3) only a very narrow class of individuals would be affected; (4) a prompt administrative remedy subject to judicial review would be available, and (5) there exists no alternative means of protecting the pub-lic health and safety less intrusive on the right of public expression. See,'nre'a'lkin,,
598. F.2d.176, 191-96,(D.C."Cir.
1'979}:j'. cf".:; Rl'fre'd':.. Kn'opX:., Tnc."v.
- Co1hy, 509'P..2d 1362, 1370-.71:(4th Cir. 1975).
1
.1 J
information where B obtained. it from A and not directly "from applicant or the Commission,"
even though it had been released by virtue of these p'roceedings.
Without suggesting that this is a likely occurrence, there is no occasion to leave that.
loophole open.
Accordingly, we will amend the non-disclosure affidavit to conform to the intervenor's suggestion but omit-
, ting the phrase "from applicant or the Commission."
This should make clear that "protected information" is that. pro-vided -"by virtue of these proceedings,"
i'.'e., pursuant to our order and not otherwise in the public domain.5/
We think it important, however, to reemphasize the Com-mission's warning:
those subject to the protective order may not corroborate the accuracy (or inaccuracy) of outside informa-tion by using protected information gained through the hearing process (see p. 3,
~su ra).
We substitute that caveat for the present clause 8(b).
- Moreover, some elaboration of this caveat is useful.
- Rumors, gossip and speculation abound and 'sometimes get into print. It is one thing for a reporter to speculate or guess that something is so or quote an undisclosed source to the 5/
The non-disclosure affidavit is.appended to this order in the amended form.
I
)
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same effect. It would be quite another, however, for an in-dividual who is known to possess the facts to repeat what otherwise would be only rumor, gossip or speculation.
In the I
latter instance, his doing so may make his statements corrobo-rative of the actual facts.
This follows because reports from undisclosed and uncertain sources are likely to be treated skeptically, but the same information announced by an individ-ual in a position to know is liable to be credited.
Similarly, receipt of protected information may position the recipient to gather and collate from the public domain otherwise useless bits and pieces of information into a repro-duction of the security plan.
In such circumstances, simply the public revelation of the information as a coherent mass may corroborate protected information.
These examples are obviously not exhaustive.
But they point up the caution those receiving protected information must exercise in making public utterances about the security plan for the applicant's facility.
We therefore stress to those who receive protected information that rumors and gossip from uninformed or unauthorized sources do not neces-sarily mean that protected information has become public knowledge to the extent that they are free to join in dis-cussing it publicly. 'f.,'lfrSd; Zno f v.'Colb, 509 F.2d
- 1362, 1370-71 (4th Cir. 1975).
We add our caution to the Commission'.s and urge that all privy to the security plan exercise the utmost restraint i;n discussing its contents lest it, be compromised.
And it should be unnecessary to remind all counsel again of the American Bar Association Canons restricting statements made during the course of an admini-strative proceeding.
See MA Disciplinary Rule 7-107.
Finally', we note that at the prehearing conference inter-venor's counsel articulated only one objection to.,a complete 1
ban on discussing protected 'information.
Thiswas a fear that.
the prohibition might somehow handicap, their defense,-
should they be charged with improper disclosure of protected infor-mation.
We do not. attempt to judge the reasonableness of that concern.
- However, a procedure whereby counsel demonstrate'hat they obtained protected information outside the hearing process (and that, their intended public utterances are not.
corroborative of it) would serve to shield them against, charges of unauthorized disclosure.
We therefore stand ready to rule on whether protected'information was in fact obtained from independent sources should counsel wish to submit that. question I
to us.
The Protective Order on Security Plan Information issued April 3; 1980, and the form of non-disclosure affidavit are C
hereby amended and reissued in the form annexed.
Intervenor's counsel should execute new affidavits of non-disclosure and h
h'
'~15.
ll I
10 PARTICIPATION OF THE GQVERNOR OF CALIFORNIA The Licensing Board rendered its partial, initial decision covering security plan issues on September 27, 1979.
The Governor of California later sought leave to intervene before that Board pursuant to 10 C.F.R. 92.715(c) as the representative of "an interested State."
The Board below admitted the Governor -for that purpose on 'November 16, 1979, with the direction that he "take the proceeding as he finds 6/
it."
The Governor did not participate in the appeal of the security plan issues (which we heard in San Francisco on January 22, 1980) or in any of the other proceedings before us that followed in the wake of our February 15th decision on that appeal.
ALAB-580, ll NRC 227 (1980).
On June 11,.
1980, the Governor submitted a notice of his intention to participate in the de novo security plan proceeding we have been conducting.
Notwithstanding the belatedness of his decision to do so, the staff responded on June 25th and the 6/
We understand that the Governor was placed on the service list at. that point and his counsel has been receiving copies of the documents filed and issued in this case.
11 applicant on July 7th that they had no objection to the Governor's participation provided that no delay resulted therefrom.
There appears to be no legal impediment to the Governor's becoming a party.
- However, as is apparent from this memorandum, the Commission's decision in CLI-80-24, supra, and our Second Prehearing Conference Order of April 11th (ALAB-S92, supra),
many matters have been considered and decided since we took up the security plan issues at the beginning of the year.
We note that, in analogous circumstances, the Commission ruled that "allowance of a,late intervention need not disrupt established discovery schedules and other prepa-rations for hearing.
A tardy petitioner with no good excuse may be required to take the proceeding as it finds it.
For * * * 'any disadvantage which it might suffer in terms of the 'opportunity for trial preparation would be entirely of its own making.'"
Nuclear Fuel
- Services, Inc.
(West Valley Reprocessing Plant), CLI-75-4, 1
NRC 273, 276 (1975)(on application of a county
't government to participate).
'Il
12 Accordingly, the Governor may participate as the representative of an interested
- state, "taking the proceeding as he finds it"; he may not, however, com-plain of rulings made or procedural arrangements settled prior to his participation.
Subject to the protective order and provided that their non-disclosure affidavits in the form attached are executed and filed with us by
\\
July 25, 1980, the Governor's counsel may examine the "sanitized" security plan to the extent and under the terms and, conditions afforded the intervenor's repre-sentatives.
The protective order provisions, including those governing the service of documents containing sensitive material, and the schedule set forth in part III, below, shall henceforth apply to the Governor as well as to the other parties.
'l
13' III.
FUTURZ PROCEEDINGS Our April 11, 1980 Second Prehearing Conference Order stated that we would issue a schedule for completing the necessary prehearing procedures after we had had an oppor-tunity to review the staff and applicant's version of the sanitized security plan.'e did not anticipate,
- however, the long delay between our April order and this one occasioned by the parties'arious petitions for review filed with the Commission.
Now that the Commission has confirmed that the applicant must make the sanitized security plan available to the intervenor it. is mme to move ahead.
Accordingly, unless modified by subsequent order, the following timetable will control the remainder of the prehearing security plan proceedinas.
l.
Our April ll order required that any depositions for the purpose of determining the qualifications of proffered expert witnesses must be completed by April 17, 1980.
Only one deposition, that of Jermiah P. Taylor, has been filed with us ~
14' Any objection or other motion concerning the qualifi-
'cations of the expert witnesses shall be filed so that it is in our hands by July 28.,
1980.
Any response shall be filed so that it is in our hands by August 4, 1980.
We will hrule promptly on any motions. If we find the proffered expert witnesses qualified, the applicant shall then make the sanitized security plan available to the expert witnesses and to those attorneys who have executed and filed appropriate affidavits of non-disclosure.
In the absence of any timely filed objections or motions, all counsel and witness who have executed and filed affidavits of non-disclosure shall be entitled to access to the sanitized security plan beginning July 30, 1980.
2.
Because the Commission determined that a portion of the affidavit of non-disclosure previously executed by inter-venor's counsel was overbroad, counsel for all intervening parties must execute new affidavits as provided in part Ii'bove.
3.
Any objections to the sanitized security plan and motions for disclosure of additional information must be in p
I
'our h'ands by August ll,'980;: responses'ust beinour h'an'ds
r
15
'L by September',
1980; and replies in our hands by,-September 15; et 1980.
All objections, responses, and repliesshall follow the
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procedures and format set forth below.
(a)
Any objection to the sanitized security plan and motion for disclosure of.additional information must identify the
- chapter, page,
- section, subsection and subject matter of each item of information sought.
The motion shall succinctly state the reason why the deleted information is relevant and refer to any applicable section of the Commissar,on's site security regulations.
10 C.F.R.-part;73.'e reco'gn'ize
'tha't:;the'ovant'annot know the precise content. of the information sought.
Nevertheless, the index to the sanitized security plan, the content of the surrounding information, and the applicant's general description of the deleted information appearing in the plan, when combined with the Commission's site security regulations, should enable the movant to state with reasonable specificity why disclosure of the withheld information is necessary.
The applicant and staff should respond to each specific objection by identifying the chapter,
- page, section, subsection and subject matter of each item of information sought.
As
1
16 the parties seeking to withhold the information, the applicant and staff shall explain in response to each particular objection:
(1) the full nature of the information withheld (without re-vealing its exact content);
(2) specifically why in light.of the standards of ALAB-410, 5 NRC, 1398,'405-06 (1977), it should be withheld; (3) the particular manner in which the information could be used to compromise the security plan; and (4) in response to movant's objections, why such infor-mation is not necessary
-to'.'movant and should not be released.
Assertions that release of any information would compromise the security plan must be supported by affidavits from know-legeable individuals.
Such affidavits should establish the
'ffiant s expertise in the subject matter at. issue.and explain 4
precisely how.the.information;sought.'could.he used to'ompromise the security plan.
II Movant shall then file a reply in the same format as its initial objection and applicant's and staff's responses.
Although the information withheld will still be unknown, those responses and accompanying affidavits will enable the movant to argue the case for disclosure with much greater particularity than in the initial objection.
All assertions that disclosure of particular information is necessary must be supported by affidavits of an expert authorized to examine the sanitized plan.
17 Again, such affidavits must establish the affiant's expertise in the subject matter at issue, explain why the information withheld is essential, and demonstrate why other information or more general information already disclosed would not suffice.
We are cognizant that the procedures set forth are burdensome.
We are also painfully aware of the burden placed upon us in determining what (if any) further. information need be included in the sanitized plan, should objections to that
- plan be filed.
But the adversary nature of normal adjudicative proceedings is necessarily distorted by the movant's ignorance of the withheld information and the usual process for dispute resolution will not serve.
The procedures outlined are modelled on those adopted by the courts for use in analogous circumstances.
They are designed to help us determine what, if any, further information need be disclosed by providing as much illumination of the issues as possible in the circumstances.
- See,
~e.
Vaucuhn v. Roeen, 484 P.2d 820 (D.C. Cir. 1973), certiorari
- denied, 415 U.S.
977 (1974).
(b)
Dr. Johnson has suggested an alternative to the fore-going procedures for the parties'='co7n'sideration.
As will be evident, it would be less burdensome on all concerned should a substantial number of objections to the plan be filed.
Be-cause of obvious legal contraints, however, this suggested alternative is practicable only if all parties are agreeable to stipulate to it and to be bound by the results.
See 10 C.F.R. 12.753.
V.
5
18 Dr. Johnson
- suggests, in the event objections to the sanitized security plan are filed, that this Board resolve them after conferring in camera with an expert witness named by each party and found qualified by us.
In other words, for purposes of determining whether further infor-mation should be made available for use in this proceeding, qualified experts named by the parties would advise us 'in camera of their respective opinions concerning the need for each item of information sought to be disclosed.
Obviously, the "outside" expert witness would have to be given access to each item of withheld information as necessary to fulfillhis responsibility to us as an advisor.
Of course, movant's experts would not be permitted to record the in camera advisory conference and any notes concerning the plan would have to be turned over to us.
No counsel for any party would be present.
Our decision on this matter would be final and binding on all parties.
Cf.,'h'e Toledo, Edi'son'ompany (Davis-Besse Station),
ALAB-300, 2
NRC 752, 764-68 (1975).
If the parties accept this alternative, the more burden-some and time consuming procedures we previously outlined in point 3(a) could be avoided and the timetable for concluding
1
19 the remaining prehearing procedures shortened considerably.
We instruct all counsel to confer promptly about Dr. Johnson's suggestion and, if it is acceptable, to file an appropriate stipulation, containing any additional details deemed neces-sary by August 4, 1980.
We will make every effort to accom-modate the schedules of the parties'xpert witnesses con-cerning the date and location of such an in'amera advisory conference.
If, after conferring, the parties are unable to agree on Dr. Johnson's suggested alternative procedure,- they should tell us so promptly and the procedures and timetable previously set forth will control the proceedings.
- However, we will enter-tain suggestions for less burdensome alternative procedures that the parties are able to agree upon if filed by August 4, 1980.
4.
In the absence of objections to the sanitized plan, amended contentions particularizing the exact aspects of the plan that are being challenged shall be filed no later than August ll, 1980.
If objections are filed, then one week from the date of our order disposing of those objections the
applicant shall revise and make available the sanitized plan.
Two weeks thereafter amended contentions addressed to the revised plan shall be filed.
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20 5.
At the April 2, 1980 prehearing conf erence we re-quested, that the parties attempt to reach agreement on the order for presenting direct testimony and the deadlines for filing such testimony.
(Tr. 116-117).
Within seven days of the filing of the amended contentions, the parties shall submit a schedule covering both the timing and order for filing direct testimony, bearing in mind that, in our judgment, more than 30 days for preparing direct testimony would not be appropriate in the circumstances of this case.
If the parties are unable to agree on a schedule by that, date, we will set one ourselves.
6.
All direct testimony shall be filed in question and answer form.
The use of this format should remind counsel and their witnesses to avoid broad and general answers to V
vague and general questions.
Rather, specific, narrowly drawn questions and precise answers should be the watchword.
Expert witnesses who will present opinion evidence are to be reminded by counsel that they are not advocates.
- Rather, such witnesses should retain their professional objectivity during cross-examination and during questioning by us.
A witness'iews which differ from.those of his colleagues should be acknowledged with appropriate explanations for those differences.
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21 7.
Once a schedule for filing direct testimony is established, we will set the hearing dates for the in camera hearing on the adequacy of the applicant's security plan.
8.
Two final matters.
First, counsel are reminded that any security plan information and similar sensitive material should not be sent through the mail but must be hand-delivered.
Counsel -attending the April 2, 1980 pre-7/
hearing conference were asked to work out the details for accomplishing hand delivery and to in'form us of those procedures.
(Tr. 112-114).
By letter dated May 2, 1980, the Secretary to the Appeal Board requested applicant's counsel to take the lead in this matter.
Xt was there requested that, after consultation with other counsel,'he submit a stipulation to govern future service of security plan materials.
We still have received no word on the subject.
Accordingly, we instruct all counsel to turn their attention to this matter immediately and file a stipulation by July 28; 1980, governing the service of documents contain-ing protected information.
We would prefer an agreed-upon procedure to one imposed by us, but the absence of an appro-
'priate stipulation will leave us no choice.
'/
Should an occasion arise where hand-delivery would be too burdensome, mailings. containing.'protected information, at a minimum, should be made from the facility furnished by the Pacific Gas and Electric Company.
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- Second, the admonition contained in our first prehearing order is even more appropriate today:
requests for extensions of time or postponements will be viewed with disfavor; unex-cused delays will not be permitted.
It is so ORDERED.
FOR THE APPEAL BOARD C. Je Bz.shop Secret ry to the Appeal Board
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