ML17054A018
| ML17054A018 | |
| Person / Time | |
|---|---|
| Site: | Nine Mile Point  |
| Issue date: | 05/04/1983 |
| From: | Allan J NRC OFFICE OF INSPECTION & ENFORCEMENT (IE REGION I) |
| To: | Lempges T NIAGARA MOHAWK POWER CORP. |
| Shared Package | |
| ML17054A020 | List: |
| References | |
| NUDOCS 8308240552 | |
| Download: ML17054A018 (12) | |
See also: IR 05000220/1981022
Text
Docket No.
50-220
MAY
4 1983
E RLE COPY
Niagara
Mohawk Power Corporation
ATTN:
Mr. Thomas
E.
Lempges
Vice President
Nucleal. Generation
300 Erie Boulevard West
Syracuse,
13202
Dear Mr. Lempges:
Subject:
INVESTIGATION REPORT
NO. 50-220/81-22
AND ENFORCEMENT CONFERENCE
REPORT
NO. 50-220/81-26
On January
31,
1983,
we sent to Niagara
Mohawk Corporation
(NMPC)
a letter and
accompanying
enclosures
in regard to Investigation
No. 50-220/81-22
and
Enforcement
Conference
Report
No. 50-220/81-26.
The letter advised
NMPC that
the
NRC had determined that certain portions of the enclosures,
containing
details of NMPC'
security program,
were exempt
from public disclosure
in
accordance
with 10 CFR 5 73.21 or 10 CFR 5 9.5(a)(4).
On February 8,
1983,
NMPC advised the
NRC by telephone that they intended to propose that
additional portions of the enclosures
be withheld from public disclosure
pursuant to
10 CFR 5 2.790(b)(l).
On February
28,
1983,
a meeting
was held
between
NMPC and the
NRC wherein the company's
reasons
for wanting additional
portions of the subject
documents withheld from public disclosure
were further
explained.
On March 8,
1983, you,
on behalf of NMPC, filed an affidavit in accordance
with 10 CFR 5 2.790(b)(1) setting forth the reasons
why additional portions of
the subject
documents
should
be withheld.
For purposes
of clarity, those
portions of the documents
which
NMPC felt should
be withheld from disclosure
were underlined
and marked with item numbers
corresponding
to item numbers
listed in your affidavit.
Your submittal is enclosed with this response
for
ease
in reference.
For the reasons
which follow, NMPC's request is granted,
in part,
and denied
in part.
'Item 1:
NMPC requests
by authority of 10 CFR 5 2.790(a)(7)(iv) that the
names
and
positions of all persons
interviewed or who declined to be interviewed,
the
names
of individuals appearing
in the
SSS log,
and the
names of the investi-
gating officers from the State Police
be withheld from public disclosure
as
confidential
sources.
It is maintained
by
NMPC that the information provided
by the individuals interviewed
was given under either
an express
assurance
of
confidentiality or in circumstances
from which such
an assurance
could reason-
ably be inferred.
NMPC also asserts
that to disclose
the
names of any person
interviewed would constitute
an unwarranted
invasion of personal
privacy.
OFFICIAL RECORD
COPY
8308240552
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Niagara
Mohawk Power Corporation
The request of NMPC is granted.
However, the basis for granting this request
is not your claim that the disclosure of person's
identities would be
an
unwarranted
invasion of their privacy or would compromise confidential
sources.
Rather,
the basis for withholding the
names of persons
contained
in the report
is to assure
continued cooperation
by these individuals during any future
investigation.
Item 2:
NMPC next requests
that all information which would tend to establish
the
mechanism utilized to disable
the emergency diesel
generators
be exempt from
public disclosure.
It is maintained that this information discloses
a vul-
nerabilityy
to potential
sabotage
and therefore
should not be disclosed
by
reason of 10 CFR 5 2.790(a)(2)
and
5 73.21(b)(3)(i).
The vulnerability NMPC
would have withheld from public disclosure is the fact that the diesel
gen-
erators
can still be disabled
by the simple expedient of opening the fuel
filter petcocks.
It is further maintained
by
NMPC that dissemination
of this material to the
general
public by the
NRC violates the mandate of 5 147 of the Atomic Energy
Act of 1954,
as
amended,
to prevent unauthorized disclosure of information
which could reasonably
be expected
to have
an adverse effect
on the health
and
safety of the public or the
common defense
and security
by significantly
increasing
the likelihood of sabotage
of a nuclear reactor.
42
USC
5 2167
(a)(3)(A).
In its'ffidavit, however,
NMPC fails to address
the fact that "vulnera-
bility", as
used in 10 CFR 5 73.21(b)(3)(i), refers to an uncorrected vul-
nerability in the physical security
system
and not to the vulnerability of a
particular piece of safety equipment which may be the subject of sabotage.
Information regarding
the diesel
generator
fuel lines and fuel line petcocks
are not covered
by any of the subparagraphs
of 10 CFR 5 73.21.
In general,
details of plant safety related
equipment,
including design,
operation,
main-
tenance,
system interaction,
and any other data
produced
in response
to the
safety
and environmental
requirements
of 10 CFR Parts 50 and 51, are not
protectable
as safeguards
information.
The authority in 5 73.21 for non-security related matters
extends
only to
lists or locations of vital safety-related
equipment explicitly identified in
physical security plans or plant specific safeguards
analyses.
NMPC has misinterpreted'oth
the applicable
NRC rules
and
5 147 of the Atomic
Energy Act, as
amended.
While the entire security plan is designated
"safe-
guards information", information extracted
from that plan must be judged
on its
ability to meet the "significant adverse effect" test set forth in 5 147 in
order to be withheld from public dislcosure.
There is not basis to conclude
there would be
a significant adverse effect
on the facility's security
system
if this information is disclosed.
OFFICIAL RECORD
COPY
~
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e
Niagara
Mohawk Power Corporation
Finally in this regard,
we wish to point out that information regarding this
event is already in the public domain
as
an entry in the Safeguards
Summary
Event List, NUREG-0525,
as follows:
"During a routine diesel
generator
operability surveillance test,
a diesel
generator failed to start because
a pet cock (sic) drain
on the fuel oil
final filter housing
had been
tampered with.
The pet cock (sic) was
aligned correctly and the generator
was subsequently
started.
Licensee
personnel
immediately checked
the diesel
generators
supplying the other
power train for the unit in question
and found the analogous
petcock
misaligned.
Subsequent
investigation confirmed that the generators
pet
cocks (sic) were intentionally tampered with, but failed to identify
the responsible
party or parties.
Fuel present at site."
NMPC next makes the argument that even
assuming that
10 CFR 5 2.790(d)(1)
and
10 CFR 5 73.21 are not applicable,
the information is still exempt from dis-
closure
under
the provisions of 10 CFR 5 2.790(a)(4)
in that the mechanism
whereby the diesel
generator
was rendered
inoperable constitutes
commercial
information in that it is the type of information which relates
to the oper-
ation of the facility and which is customarily not released
to the public
by
NMPC.
Citin
Continental
Stock Transfer
and Trust
Com an
v. Securities
and
Exchan
e Commission
566
F.
2d 363,
375
2d Cir., 1977), National Western
Life Ins.
Co. v. U.S.
512
F.
Supp.
454,
462 (D.C. Texas,
1980
.
Again, the arguments
set forth by
NMPC do not go far enough.
In order to
protect information as confidential
commercial
information under exemption
four, it must be
shown that disclosure of the information is likely to cause
substantial
harm to the competitive position of NMPC.
National
Parks
and
Conservation
Association v. Morton 498 F.
2d 765,
770 (D.C. Cir.,
1974
.
No
effort has
been
made
by
NMPC to show such
a harm.
Moreover, it should
be
pointed out that certain of the assertions
made
by
NMPC are factually in-
correct.
Specifically, the information relative to the method of disabling
the generators
has not been held in confidence prior to the Commission's letter
of January
31,
1983.
This very information has
been
released
to the public
through
as set forth above.
In addition, this is not the type of
information customarily held in confidence
as evidenced
by NUREG-0525.
Accordingly,
NMPC has not met its burden to
show why this information should
be withheld from public disclosure
as confidential
commercial
information.
Item 3.
NMPC next lists
a series of specific passages
from Investigation
Report 81-22
and requests
the information be withheld as matter relating to plant security
and safeguards.
Each specific request will next be addressed,
in turn.
OFFICIAL RECORD
COPY
I-
r
Niagara
Mohawk Power Corporation
Item 3a.
Although the information requested
to be withheld is not safeguards
information
under either
10 CFR 5 53.21 or 5 147 of the Atomic Energy Act, as
amended,
to
the extent indicated, disclosure is withheld by reason of 10 CFR 5 2.790
(d)(1)
Item 3b:
The request to withhold the fact that the State Police
and
FBI investigated
the disabling of the diesel
generators
is denied in light of the fact neither
organization
has
requested
such information be withheld.
Moreover, neither
the
FBI nor the State
Police are designated
in NMPC's security plan
as the
primary offsite response
force and therefore this information is not safeguards
material.
In contrast to what is stated
by NMPC, nowhere in the report are
investigative techniques
of either organization
discussed,
and accordingly the
information sought to be withheld is not exempt
by reason of 10 CFR 5
2.790(a)(7)(v).
Item 3c:
The withholding from disclosure of this item is denied for the reasons
set
forth in response
to Items
2 and 3b.
Item 3d:
For the reasons
set forth in response
to Item 3a, to the extent indicated,
disclosure is withheld by reason of 10 CFR 5 1.790(d)(1).
Item 3e:
For the reasons
set forth in response
to Item 3a, to the extent indicated,
disclosure
is withheld by reason of 10 CFR 5 2.790(d)( 1).
Item 3f:
This material will be withheld as
safeguards
information.
~Item
3
For the reason
set forth in response
in Item 3a, to the extent indicated,
disclosure
is withheld by reason of 10 .CFR
5 2.790(d)(1).
Item 3h:
For the reasons
set forth in response
to Item 3a, to the extent indicated,
disclosure is withheld by reason of 10 CFR 5 2.790(d)(1).
OFFICIAL RECORD
COPY
~
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J
Niagara
Mohawk Power Corporation
Item 4
For the reasons
set forth in response
to Item 2, withholding of this
information is denied.
Item 5:
For the reasons
set forth in response
to Item 2, withholding of this
information is denied.
Item 6:
For the reasons
set forth in response
to Item 3a, to the extent indicated
disclosure is withheld by reason of 10 CFR 5 2.790(d)(1).
Finally,
NMPC requests
in the alternative,
that the entire enclosure
be exempt
from public disclosure
since
even the expurgated
version
suggested
by
leaves
information which would prove useful to
a would be saboteur.
For the
reasons
set forth above, this request is denied
and the document will be placed
in the Public Document
Room 30 days
from the date of this letter.
Enclosure:
As stated
Sincerely,
ORIGINAL SIGNED BY:
]/MES M. ALLAN
ames
M. Allan
Acting Regional Administrator
cc w/encl:
G.
K. Rhode,
Senior Vice President,
System Project
Management
T..Perkins,
General
Superintendent,
Nuclear Generation
T.
Roman, Station Superintendent
J. Aldrich, Supervisor,
Operations
W. Drews, Technical
Superintendent
Troy B. Conner, Jr.,
Esquire
John
W. Keib, Esquire
Director,
Power Division
Public Document
Room (PDR)
Local Public Document
Room (LPDR)
Nuclear Safety Information Center
(NSIC)
NRC Resident
Inspector
State of New York
OFFICIAL RECORD
COPY
4
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Niagara
Mohawk Power Corporation
bcc w/encl:
Region I Docket
Room (with concurrences)
Senior Operations Officer (w/o encls)
DPRP Section Chief
D. Caphton
J. Joyner
T. Martin
J.
Lieberman,
ELD
R.
DeYoung,
Gutie(rez/gwc
A
n
5/4/83
OFFICIAL RECORD
COPY
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