ML19209C489
| ML19209C489 | |
| Person / Time | |
|---|---|
| Site: | 07002623 |
| Issue date: | 09/07/1979 |
| From: | Christenbury E, Ketchen E NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| References | |
| NUDOCS 7910150654 | |
| Download: ML19209C489 (13) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
(.M BEFORE THE COMMISSION 5
In the Matter of DUKE POWER COMPANY Docket No. 70-2523
)
( Amendment to Materials License
)
SNM-1773 for Oconee Nuclear Station
)
Spent Fuel Transportation and Storage )
at McGuire Nucleae Station)
)
NRC STAFF PETITION FOR REVIEW AND REQUEST FOR AN INTERIM PROTECTIVE ORDER I.
Introduction On September 6,1979 the Appeal Board denied the NRC Staff's motion for directed certification of a Licensing Board ruling which denied the NRC Staff's request for an h camera hearing and the issuance of an appropriate protective order. The requested protective relief was sought as to certain route infonnation for the shipment of spent fuel which the NRC Staff argued was entitled to protection under the Commission's regulations. The NRC Staff believes that Commission review of this matter should be had in that the issue presented involves the protection of security infonnation which may not otherwise be protected at the hearings scheduled to recommence on Septembe r 10, 1979, and because the matter raises an important legal and policy issue requiring Commission resolution. The NRC Staff further re-quests an interim protective order pending the Commission's consideration of the matters raised by the petition for review.
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II. Backg round Licensing hearings are being conducted in this proceeding to review Duke Power Company's proposal to transship and store three-hundred, 270-day old Oconee reactor spent fuel assemblies in the McGuire Unit 1 spent fuel.
The hearings began on June 20,1979.E On July 16, 1979, new safeguards regu-lations (" Physical Protection of Irradiated Reactor Fuel in Transit", 44 Fed. Req. 34467; June 15,1979) specifically 10 CFR 5 73.1 and 5 73.37, went into effect. The NRC Staff reviewed Duke Power Company's (DPC) proposal to implement these regulations against the criteria of 10 CFR 5 73.37.
Based on the criteria set forth in the new regulations, the NRC Staff did not approve of DPC's proposed primary route.
Instead, three alternative routes proposed by DPC were approved by the NRC Staff.
During the course of the continuing evidentiary hearings, the question arose as to the procedures under which the NRC Staff would be required to disclose the three alternative routes approved by the Staff under the new regula-tions.U (Tr. 3030; Tr. 3021-49, specifically 3041-47; 3196-3240, speci fic-ally 3237-40; 3815-22).
The arguments at the evidentiary session addressed the issue of whether the alternative routes now approved by the Staff are subject to exemption from disclosure pursuant to the requirements of 10 CFR If The hearings were recessed on June 29, 1979.
Four additional days of hearings were conducted on August 6-9, 1979. Additional hearings on the proposed licensing action are scheduled for September 10-14, 1979.
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The question of the location of routes involves two Staff witness panels.
One NRC Staff panel sponsored testimo"y relative to Carolina Environmental Study Group Contention (CESG) No. 2.
A second NRC Staff evidentiary panel will be proffered to address the Natural Resources Defense Council (NRDC)
Contention No. 6 relative to the sabotage of transshipments.
In both cases, routing details are viewed as relevant by the Staff.
f 343 th 3
, 5 2.790. While the Licensing Board did not expressly find that the exemption from disclosure requirements of the NRC regulations were not applicable, it denied the Staff's request for a protective ord er and h camera sessions relative to the route alternatives infomation.
(Tr. 3237.) The basis given by the Board for its denial was that:
(i) the information as to routing had already been made public; (ii) the infomation had already been the subject of direct and cross-examination and limited appearance statements at the hearings; and (iii) the vehicles used for transportation of the spent fuel.could be observed by members of the pubif e as a practical matter anyway.
(Tr. 3237). The Board stayed the effect of its ruling for thirty days to allow the parties to seek any remedies available to them. (Tr. 3238).
Following an extensive review of both the policy and security implications of this decision, the NRC Staff, on September 4,1979, sought directed certification of the ruling. The Appeal Board denied the' Staff's motion in a Memorandum and Order issued on September 6,1979. While the Appeal Board was critical of the Staff for failing to file such a motion on a more ex-pedited basis, the essential reason for the denial was agreement with the Licensing Board that infornation already in the public demain i.s not entitled to proprietary treatment under the provisions of 10 CFR 9 2.790(d).
Ci ting Kansas Gas and Electric Co. (Wolf Creek Unit 1), ALAB-327, 3 NRC 408, 416-17 (1976). (Memorandum and Order, p. 2) The Appeal Board also was critical of the NRC Staff's failure to address adequately the Licensing Board's finding that the route infomation is already in the public domain.
The Appeal 1134 344 Board did indicate in a footnote to its decision that the precise route (among those which will be available to the applicant) of any particular shipment taking place at any specific time was not in the public domain nor should it be.
(Memorandum and Order, p. 3, n.3) The Appeal Board indicated that it would address this latter issue in a forthcoming opinion on the matter.
III.
Issue Presented Whether information which requires safeguarding under-the Commission's regu-lations should receive protection?
IV. Discussion A.
Review of the Licensing Board's decision relative to the NRC Staff's request for a protective order and 3 camera hearings, and a subsequent denial of such relief by the Apreal Board presents a question of law and policy meriting review by the Commission.
Moreover, given the harm to the public interest inherent in the denial of the relief requested, an interim protective order is required to insure that the interests of the public are properly safeguarded and that the adjudicatory proceedings of this Com-mission are properly conducted.E The standards applicable to a petition for review under 10 CFR 5 2.786 are similar to those set forth by the Appeal Board when considering whether to y See, Public Service Conoany of New Hamoshire (Seabrook Units 1 & 2),
5 NRC S03, 516 (1977) in wnich this Commission observed that while 10 CFR $ 2.786(a) "... states the ordinary practice for [Ccamission]
review, it does not -- and could not -- interfere with our inherent supervisory authority over the conduct of adjudicatory proceedings before the Comrission." Citing CLI-76-13.
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. exercise discretionary interlocutory review by directed certification pur-suant to 10 CFR Q 2.718(i).
Under that authority, the Appeal Board has fregaently held that directed certification will lie where the question for which certification is sought is one which must be reviewed now or not at all. Kansas Gas & Electric Co., (Wolf Creek Unit 1), ALAB-327, 3 NRC 408, 413 (1976); ALAB-311, 3 NRC 85, (1976); and ALAB-391, 5 NRC 754 (1977).
9 While the Commission's review of Appeal Board's decisions lies purely within its discretion, the NRC Staff believes that it clearly follows that a simi-lar standard of review by the Commission would be appropriate when con-sidering whether to issue an interim protective order.
At issue here is a Commission regulation which specifically precludes dis-closure of infomation to the public.
Failure to apply the regulation makes it obvious that the harm the regulation seeks to prevent will accrue, if at all, at the time the information is revealed in open session at the hear-ings. Thus it fcilows, that the issue must be considered and resolved prior to the restart of the scheduled hearing on this issue on September 10, 1979.
Any detriment to the public interest resulting from the disclosure of this infomaton will have occurred by the time this matter could be considered on appeal following the conclusion of the present scheduled hearing.
Moreover, revealing safeguards information contrary to express Commission regulations would cause injury to the public interest by increasing the risk that a spent fuel shipment could be attacked.
Safeguards systems, even 1134 346
. those involving offsite handling of nuclear materials, are sensitive matters which are clearly not required to be made available to the public at large.
(Pacific Gas and Electric Comoany (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAS-410, 5 NRC 1398,1403-04 (1977).
B.
The present case presents an important issue of law and policy in that neither the Licensing nor the Appeal Board should have refused to apply a Commission regulation.
Revealing the specific details about the approved routes for the proposed transshipment action or other transportation security provisions to the public at large clearly contravenes present regulatory requirements and Commission policy relative to safeguarding nuclear material.O It is also detrimental to the public interest.
Public Service Comoany of New Hamoshire, et al. (Seabrook Station, Ur.its 1 and 2), ALAB-271,1 NRC 478, 483 (1975).
The Licensing Board did not specifically reject the Staff's argument that the Commission's rule (10 CFR 73.37), which was promulgated during the course of this proceeding, was now fully applicable to this issue.
Rather, the Licensing Board rested its decision on the ground that
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The Staff's treatment of safeguards information, including. hat related to routes, has been treated consistently by the Staff since issuance of the Commission's safeguards regulations on June 15, 1979, 44 Fed. Reg. 34467.
See, June 15, 1979 Memorandum For:
Samuel J. Chilk, Secretary to the Commission from William J. Dircks, Director, Office of Nuclear Material Safety and Safeguards,
Subject:
SECY 79-278 and 278A.
Physical Protection of Irradiated Fuel Shipments Secy Memo of May 25, 1979, Staff Exhibit No. 23 for Identification, Hearing Transcript (August 7,1979),
pp. 3201-02.
See also, Vircinia Sunshine Alliance et al v. Hendrie, et al.,
Civil No. 79-1989, August 31, 1979.
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. much of the information was already generally available to the public. (Tr.
3237-38)~ The Licensing Boad finding is not supported by the record.
The route originally proposed by the applicant before the effective date of the Comission's regulations is public knowledge in accordance with the then prevailing regulations. That route was also identified by the Staff in the EIA.E Some testimony and cross-examination was had during hearings in June on this subject.
This route, however, was proposed by Duke in 1978, well before the effective date of the new spent fuel transit security regulations and the changes which the NRC Staff required in routings as a result.
Since the promulgation of the new regulations, Duke has proposed additional or alternative routes although still favoring the original route.
At no time have these additional routes or even the fraction of these routes which might nJn concurrently with the original proposal become a part of the public record.Y Thare has been no NRL Staff testimony or oral or written communications disclosing information about the alternative routes to the public.
As the NRC Staff attempted to argue to the Licensing Board (Tr. 3202),
it is NRC Staff practice to maintain such information in confidence.
The only conclusion that can be drawn from this record is that the original route proposed by applicant was not approved and that the alternative routes may or S/
Environmental Impact Appraisal related to Spent Fuel Storage of Oconee Spent Fuel at McGuire Nuclear Station - Unit 1 Spent Fuel Pool (EIA),
pp. 8-9. Staff Exhibit No. 3 6/
At one point, NRDC's counsel argued that 90% of the alternative routes had been disclosed.
The only bases for this assertion were the repre-sentations of other counsel.
(Tr. 3322-23).
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. may not coincide with the original pror; sal on some segments. The NRC Staff does not believe that such a record si pports the finding reached by the
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Licensing Board on this subject.
1.
Commission regulations, Commission policy, and Commission de-cisions on safeguards infonnation clearly support the conclusion that the infonnation on specific routes aoproved by the NRC Staff, and transportation security information in general, should not be made available to the public at large.
10 CFR Q 2.790(d)(1); Diablo Canyon, suora.
Such information, however, can be released to interested parties with appropriate protective sa fege --d s.
Diablo Canyon, suora, 1403-04.
The material the Staff seeks to protect in the present proceeding involves the procedures established for safeguarding licensed special nuclear mater-tal pursuant to 10 CFR 9 2.790(d)(1).
The specific route alternatives approved for use by DPC are part of its overall procedures being implemented in accordance with the new regulations set forth in 10 CR 5 73.37 for safe-guarding such material from sabotage during transportation.
2.
While safeguards infonnation involving nuclear materials is to be shielded from unlimited public disclosure, appropriate protective conditions shculd be fashioned so that safeguards information may be revealed, if necessary, to Intervenors in a particular case in order that they may pro-perly litigate issues in controversy.
Diablo Canyon, suora, 5 NRC 1404-06.
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. The Staff's arguments relative to the balancing of the interest of full and open Commission hearings against the regulation's requirements for protec-tion of the public by non-disclosure of information does not mean that the Staff seeks to withhold information from the Intervenors whose participation is important in Commission proceedings.
Prevention of access to such infor-mation in absolute terms is contrary to Commissicn regulations. Diablo Canyon, supra.
Intervenors should have a reasonable opportunity to be heard on DPC's transportation system as it may affect their contentions and the Commission's regulations provide a means by which access to security infor-mation can be obtained in order to pursue a contention.
To exercise their reasonable opportunity, the Intervenors would be required to show that they have a right to review the protected information subject to non-disclosure.
Diablo Canyon, suora; Pacific Gas and Electric Comoany (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-504, 8 NRC 406 (1978); Pacific Gas and Electric Comoany (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-514, 8 NRC 697 (1978). There is no reason to believe that the Intervenors in this proceeding cannot meet the tests set forth in Diablo Canyon, ALAB-410.
V.
Conclusion For the reasons set forth, the NRC Staff requests the following relief:
(1) That the Commission grant the NRC Staff's petition for review of the decision denying protection of safeguards information.
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. (2) That the Commission grant an interim protective order that the transportation routes approved by the NRC Sta,ff for the proposed transshio-ment, and transportation security information in general, not be revealed except under an appropriate protective order meeting the requirements of Diablo Canyon, ALAB-410, suora, pending resolution of the issue before the Commission.
(3) That the Commission detennine that any infornation directly or indirectly involving the specific routes and transportation security infor-mation associated with the McGuire-Oconee proposal is exempt from disclosure pursuant to 10 CFR f 2.790(d)(1) except under an appropriate protective order meeting the requirements of Diablo Canyon, ALAB-410, suora.
Respectfully :ubmitted, s.
Edward G. Ketchen Counsel for NRC Staff Edward S. Christenbury Chief Hearing Counsel Dated at Bethesda, Maryland this 7th day of September,1979.
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.551
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In t.1e Matter of
)
DUKE POWER COMPANY (Amendment to Materials License
)
Docket No. 70-2623 SNM-1773 for Oconee Nuclear Station
)
Spent Fuel Transportation and Storage
)
at McGuire Nuclear Station)
)
NOTICE OF APPEARANCE Notice is hereby given that the undersigned attorney herewith enters an appearance in the captioned matter.
In accordance with 62.713(a), 10 C.F.R. Part 2, the following information is provided:
Name:
Edward S. Christenbury Address:
U.S. Nuclear Regulatory Commission Office of the Executive Legal Director Washington, D. C.
20555 Telephone Number:
Area Code 301 - 492-27201 Admissions:
Supreme Court of the State of Tennessee Court of Appeals for the District of Columbia Circuit U.S. Supreme Court Name of Party:
NRC Staff Edward S. Christenbury
/
Counsel for NRC Staff Dated at Bethesda, Maryland this 7th day of September,1979 1134 352
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of DUKE POWER COMPANY
)
Docket No. 70-2623
)
(Amendment to Materials License
)
SNM-1773 for Oconee Nuclear Station
)
Spent Fuel Transportation and Storage )
at McGuire Nuclear Station)
)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF PETITION FOR REVIEW kND REQUEST FOR AN INTERIM PROTECTIVE ORDER" dated September 7,1979 and " NOTICE OF APPEARANCE OF EDWARD S. CHRISTENBURY" dated September 7,1979, 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 through deposit in the Nuclear Regulatory Commission's internal mail system, this 7th day of September,1979:
- Mr. Joseph M. Hendrie, Chairman
- Dr. John H. Buck U.S. Nuclear Regulatory Comission Atomic Safety and Licensing Appeal Washington, D. C.
20555 Board U.S. Nuclear Regulatory Comission
- Mr. Victor Gilinsky Washington, D. C.
20555 U.S. Nuclear Regulatory Comission Washington, D. C.
20555
- Michael C. Farrar, Esq.
Atomic Safety and Licensing Appeal
- Mr. Richard T. Kennedy Board U.S. Nuclear Regulatory Comission U.S. Nuclear Regulatory Comission Washington, D. C.
20555 Washington, D. C.
20555
- Peter A. Bradford
- Marshall E. Miller U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Washington, D. C.
20555 U.S. Nuclear Regulatory Commission Washington, D. C.
20555
- John F. Ahearne U.S. Nuclear Regulatory Commission
- Dr. Cadet H. Hand, Jr., Director Washington, D. C.
20555 Bodega Marine Laboratory University of California
- Mr. Alan S. Rosenthal, Chairman P.O. Box 247 Atomic Safety and Licensing Appeal Bodega Bay, California 94923 Board U.S. Nuclear Regulatory Commission
- Dr. Emmeth A. Luebke Washington, D. C.
20555 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D. C.
20555 1134 353
. W. L. Porter, Esq.
- Mr. Samuel J. Chilk, Secretary Associate General Counsel' Office of the Secretary Legal Department U.S. Nuclear Regulatory Commission Duke Power Company Washington, D.C.
20555 422 South Church Street Charlotte, North Carolina 28242 Anthony Z. Roisman, E q.
c/o Sheldon, Harmon, Roisman, & Weiss 1725 I Street, N.W.
Suite 506 Washington, D. C.
20006 J. Michael McGarry, III, Esq.
Debevoise & Liberman 1200 Sevanteenth Street, N.W.
Washington, D. C.
20036 Mr. Jes:e L. Riley, President Carolina Environmental Study Group f
j 854 Henley Place Charlotte, North Carolina 28207 M
s Edward G. Ketchen Richard P. Wilson, Esq.
Counsel for NRC Staff Assistant Attorney General State of South Carolina 2600 Bull Street Columbia, South Carolina 29201
- Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D. C.
20555
- Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D. C.
20555
- Docketing and Service Section U.S. Nuclear Regulatory Commission Washington, D. C.
20555 ii34 354
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