ML19253B443
| ML19253B443 | |
| Person / Time | |
|---|---|
| Site: | 07002623 |
| Issue date: | 09/04/1979 |
| From: | Ketchen E NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| References | |
| NUDOCS 7910150699 | |
| Download: ML19253B443 (11) | |
Text
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gi' NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD 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)
)
I.
MOTION FOR DIRECTED CERTIFICATION OF-THE LICENSING BOARD'S RULING DENYING THE NRC STAFF'S REQUEST FOR
-IN CAMERA HEARINGS AND A PROTECTIVE ORDER RELATIVE TO SAFEGUARDS I" FORMATION:
- 11. REQUEST FOR AN INTERIf1 PROTECTIVE ORDER PENDING A RULING ON THE RE0 VEST FOR DIRECTED CERTIFICATION I.
Introduction and Backcround The licensing hearings in the above-captioned proceeding to review Duke Power Company's proposed license amendment to transship and store three-hundred, 270-day old Oconee reactor spent fuel assemblies in the McGuire Unit 1 spent fuel pool began on June 20,1979.E On July 16, 1979, new safeguards regulations (" Physical Protection of Irradi-ated Reactor Fuel in Transit", 44 Fed. Rec. 34467; June 15,1979) specifically 10 CFR 5 73.1 and 5 73.37, went into effect.
The NRC Staff has 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 1151 122 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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. regulations, the NRC Staff did not appre e of DPC's proposed primary route. The three alternative routes proposed by DPC have been approved by the NRC Staff.
(letter from George W. McCorkle, Chief, Physical Security Licensing Branch to Duke Power Company, dated August 3, 1979; marked for identification as Staff Exhibit No. 29 (copy attached)).
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. 3196-3240).
The arguments at the evidentiary session addressed the issue of whether the
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alternative routes..aw approved by the Staff are subject to exemption from disclosure pursuant to the requirements of 10 CFR @ 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 order and h camera sessions relative to 2_/
The question of the location of routes involves two Staff witness panels.
One NRC Staff panel sponsored testimony relative to Carolina Environmental Study Group Contention (CESG) No. 2.
A second NRC Staff evidentiary panel will be proffered to address the National Resources Defense Council (NRDC).
In both cases, routing details are viewed as relevant by the Staff.
Con-tention No. 6 relative to the sabotage of transshipments.
1151 123 the route alternatives information.
(Tr. 3237.)3_/ The basis given by the Board for its denial was that:
(i) the information as to rout:ng had already been made public;b/ (ii) the information 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 public 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 re edies available to them.
[i r. 3238).
Accordingly, the NRC Staff is seeking directed certification of the Licensing Board's ruling and an interim protective ~ order pending the Appeal Board's review.
II.
Issue Presented Whether the Licensing Board has the authority to refuse to protect infoma-tion which requires protection under the Commission's regulations?
-3/
Little was said about other related matters which may be subject to 5 2.790 confidentiality requirements (i.e., 9PC's detailed compliance with new 10 CFR 6 73.37) that maj arise in the hearings to reconvene on September 10, 1979.
The factual issue for which certification is sought involves the specific routes approved by the NRC Staff.
It is likely that the question of a protective order and M camera hearings could come up with respect to other elements of DPC's safeguards transportation system. This was brought to the Licensing Board's attention at the hearings.
(Tr. 3821-22).
At the appropriate time, the Staff will move that other elements of DPC's transportation safeguards system be disclosed only under protective order and litigated only in h camera hearings.
-4/
Information on the specific alternative routes now approved has not been made public.
(Tr. 3202; 3212).
1151 124
_4_
III. Discussion A.
Review of the Licensing Board's decision relative to the NRC Staff's request for a protective order and in camera hearings with respect to the specific route information is necessary to prevent detriment to the public interest.
A party seeking certification must show that a failure to resolve the problem will cause the public interest to suffer.
Puerto Rico Water Resources Authority (North Coast Nuclear Plant, Unit 1), ALAB-361, 4 NRC 625 (1976);
Toledo Edison Co. (Davis-Besse Nuclear Power Station), ALAB-300, 2 NRC 752, 759 (1975); Public Service Comoany of New Hampshire, (Seabrook Station, Units 1 and 2), ALAB-271, 1 NRC 478, 483 (1975).
Ham to the public interest will accrue f om revealing detailed infomation about the specific routes approved by the NRC Staff for transportation of Oconee spent fuel from the Oconee facility to the McGuire facility for storage.
Easy access to route information as a part of the total safeguards systems approved by the NRC Staff for DPC's proposed transshipment would reduce the burden on a poten-tial saboteur who planned to intercept a spent fuel shipment for the purpose of sabotage. Although that piece of infomation about routes in and of itself arguably could be obtained by maintaining surveillance of plant exits and following the clearly marked trucks traveling down the highways, this would require some effort with the possibility of discovery of the potential saboteur. The public interest requires maximum deterrence in this area.
1151 125
. A factor favoring directed certification is that the question for which certification is sought is one which must be reviewed now or not at all.
Kansas Gas & Electric Co., Kansas City Power and Lioht Co., (Wolf Creek Nuclear Generating Station, Unit 1), ALAB-327, 3 NRC 408, 413 (1976);
Kansas Gas and Electric Co., et al., (Wolf Creek Nuclear Generating Station, Unit No.1), ALAB-311, 3 NRC 85, (1976); Kansas Gas & Electric Co., et al.,
Wolf Creek Nuclear Generatina Station, Unit No.1), ALAB-391, 5 NRC 754 (1977). At issue here is a Commission regulation which specifically pre-cludes disclosure of infomation to the public.
Failure to apply the regu-lation makes it obvious that the ham the regulation seeks to prevent will accrue, if at all, at the time the infomation is revealed in open session of these hearings.
Thus it follows, that the issue must be considered and resolved prior to the restart of the scheduled hearing on this issue.
For 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.
Therefore, in these circumstances the Licensing Board's ruling has all the attributas of finality on an overriding issue of law and policy insofar as there is a legitimate interest to be protected in keepirg the specific route informa-tion confidential. g. Commonwealth Edison Co. (Zion Station, Units 1 and 2), ALAB-ll6, 6 AEC 258 (1973) apolied in Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-122, 6 AEC 322 (1973).
1151 126
. Another factor that must be applied in considering whether directed certi-fication should be granted is whether the underlying issue is one involving important legal and policy implications. Wolf Creek, supra, ALAB-327, 3 NRC, 413. Wolf Creek, ALAB-311, supra, 3 NRC 89.
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 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),' ALAB-410, 5 NRC 1398, 1403-04 (1977).
Accordingly, directed certification is warranted since the issue involved is an important one that must be resolved now or not at all.
B.
The Board does not have jurisdiction to refuse to apply a Commission regulation.
Revealing the specific details about the approved routes for the proposed transshipment action or other transportation security pro-visions to the public at large clearly contravenes present regulatory requirements and Commission policy relative to safeguarding nuclear mate-rial.
It is also detrimental to the public interest.
Public Service Comoany of New Hamoshire, et al. (Seabrook Station, Units 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
- 115, 127 was promulgated during the course of this proceeding, was now fully applic-able to this issue.
Rather, the Licensing Board rested its decision on the ground that much of the information was already generally available to the public. Other attempts to carve from pending proceedings a class of cases which are not affected by new Commission regulations have met with dis-approval.
Potomac Electric Power Co. (Douglas Point Units 1 and 2), ALAB-218, 8 AEC 79, 87 (1974).
c f,.
Consolidated Edison Comoany of New York, Inc.
(Indian Point Station, Unit No. 2), CLI-74-23, 7 AEC 947, n. 1, 948 (1974),
Vermont Yankee Nuclear Power Corocration (Vermont Yankee Nuclear Power Sta-tion), ALAB-229, 8 AEC 425, 439, n. 31 (1974);
1.
Commission regulations, Commission policy, and Commission decisions on safeguards information clearly support the conclusion that the information on specific routes approved by the NRC Staff, and transportation security information in general, should not be made available to t'he public at large.
10 CFR S 2.790(d)(1); Diablo Canyon, suora.
Such information, however, can be released to interested parties with appropriate protective safeguards.
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 material pursuant to 10 CFR 5 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 CFR 5 73.37 for safe-guarding such material from sabotage during transportation.
115l 128
~.
, 2.
While saregua,ds infonnation involving nuclear materials is to be shielded from unlimited public disclosure, appropriate protective conditions may be fashianed so that safeguards information may be revealed, if necessary, to Intervenors in a particular case in order that they may properly litigate issues in controversy. Diablo Canyon, s Jpra, 5 NRC 1404-06.
The Staff's arguments relative to the balancing of the interest of full and open Commission hearings against tne regulation's requirements for protec-tion of the public by non-disclosure of inf rmaticn 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 Commission regulations.
Diablo Canyon, supra.
Intervenors should have a reasonable opportunity to be heard on DPC's transportation system as it may affect their contentinns and the Commission's regulations provide a mear.5 by which access to security infonnation 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, supra; ?acific Gas and Electric Comoany (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-504, 8 NRC 406 (1978); Pacific Gas and Electric Conoany (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.
1151 129
. III.
Conclusion For the reasons set forth, the NRC Staff requests the following relief:
(1) That the Appeal Board grant the NRC Staff's motion for directed certification; (2) That the Appeal Board grant an interim protective order that the transportation routes approved by the NRC Staff for the proposed transship-ment, and transportation security information in general, not be revealed except under an appropriate protective order meeting the requirements of Diablo Canyon, ALAB-410, supra, pending resolution of the issue before the Appeal Board;N (3) That the Appeal Board determine that any information directly or indirectly involving specific routes and transportation security information in general is exempt from disclosure pursuant to 10 CFR s 2.790(d)(1) except unde" an appropriate protective order meeting the requirements of Diablo Canyon, ALAB-410, suora.
Respectfully submitted, Edward G. Ketchen Counsel for NRC Staff Dated at Bethesda, Maryland this 4th day of September, 1979.
6/
This is important because the evidentiary hearings set for consideration of contentions involving the specific routes will begin again on Septem-ber 10, 1979.
1151 130
UNITED STATES OF AMERICA NUCLEAR REGULATORY C0t41ISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of DUKE POWER COMPANY Docket No. 70-2623 (Amendment to Materials License
)
SilM-1773 for Oconee Nuclear Station
)
Spent Fuel Transportation and Storage at McGuire Nuclear Station)
CERTIFICATE OF SERVICE I hereby certify that copies of "I.
MOTION FOR DIRECTED CERTIFICATION OF THE LICENSING BOARD'S RULING DENYING THE NRC STAFF'S REQUEST FOR IN CAMERA HEARINGS AND A PROTECTIVE ORDER RELATIVE TO SAFEGUARDS INFORMATION:
II. REQUEST FOR AN INTERIM PROTECTIVE ORDER PENDING A RULING ON THE REQUEST FOR DIRECTED CERTIFICATION" dated September 4,1979, 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 4th day of September,1979.
- Mr. Alan S. Rosenthal, Chairman Dr. Cadet H. Hand, Jr., Director Atomic Safety and Licensing Bodega Marine Laboratory Appeal Board University of California U.S. Nuclear Regulatory Commission P.O. Box 247 Washington, D. C.
20555 Bodega Bay, California 94923
- Dr. John H. Buck
- Dr. Emmeth A. Luebke Atomic Safety and Licensing Atomic Safety and Licensing Board Appeal Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D. C.
20555 Washington, D. C.
20555 W. L. Porter, Esq.
- Michael C. Farrar, Esq.
Associate General Counsel Atomic Safety and Licensing Legal Department Appeal Board Duke Power Company U.S. Nuclear Regulatory Coranission 422 South Church Street Washington, D. C.
20555 Charlotte, North Carolina 28242
- Marshall E. Miller Atomic Safety and Licensing Boara U.S. Nuclear Regulatory Commission Washington, D. C.
20555 1151 131
- Anthony.'. Roisman, Esq.
- Atomic Safety and Licensing Appeal Natural Resources Defense Council Board 197 - 15th Street, N.W.
U.S. Nuclear Regulatory Commission Washington, D. C.
20005 Washington, D. C.
20555
- Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D. C.
20555 J. Michael McGarry, III, Esq.
- Docketing and Service Section Debevoise & Liberman U.S. Nuclear Regulatory Commission 1200 Seventeenth Street, N.W.
Washington, D. C.
20555 Washington, D. C.
200'36 Mr. Jesse L. Riley, President Carolina Environmental Study Group 854 Henley Place Charlotte, North Carolina 28207 Richard P. Wilson, Esq.
Assistant Attorney General State of South Carolina 2600 Bull Street Columbia, South Carolina 29201 s
=
Edward G. Ketchen Counsel for NRC Staff 1151 132