ML19256F861
| ML19256F861 | |
| Person / Time | |
|---|---|
| Site: | 07002623 |
| Issue date: | 12/10/1979 |
| From: | Ketchen E NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| References | |
| NUDOCS 7912260371 | |
| Download: ML19256F861 (7) | |
Text
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yA UNITED STATES OF AMERICA f'
12/10/79 NUCLEAR REGULATORY COMMISSION g
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BEFORE THE COMMISSION 4'
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3 In the Matter of
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DUKE POWER COMPANY Docket No. 70-2623
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(Amendment to Materials License
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SNM-1773 for Oconee Nuclear Station
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Spent Fuel Transportation and Storage )
at McGuire Nuclear Station)
)
NRC STAFF RESPONSE TO RESPONSES OF CAROLINA ENVIRONMENTAL STUDY GROUP, NATURAL RESOURCES DEFENSE COUNCIL, AND THE STATE OF SOUTH CAROLINA IN RE DISCLOSURE OF ROUTE INFORMATION Statement On September 7,1979, the NRC Staff filed a petition with the Commission seeking review of a denial by the Licensing Board of an August 7,1979 request of the Staff for an jn_ camera hearing and the issuance of a protec-tive order (Tr. 3237).-1/
The relief requested of the Licensing Board had been sought to protect as safeguards information the designated routes for the transhipment of spent fuel from the Oconee Nuclear Station in South Carolina to the McGuire > facility in North Carolina. Specifically, the Staff had urged that the route information required to be submitted by the Applicant pursuant to 10 C.F.R. 573.37 was exempt from public disclosure pursuant to 10 C.F.R. 2.790(d)(1).
If On September 6,1979, the Atomic Safety and Licensing Appeal Board denied the motion of the Staff for direct certification of the Licensing Board 's August 7,1979 ruling.
1638 252 7912260
Following the filing of the petition for review by the Staff, the Commis-sion entered an Order on November 2,1979 directing that the protected information be provided to the Commission and to all parties to the pro-ceeding agreeing to execute a prescribed affidavit of non-disclosure.
(CommissionOrderat2.)
The Comission's Order further provided that the parties would have thirty days within which to respond to the Staff's petition and subsequent filing.
By separate briefs, the Carolina Environ-mental Study Group (CESG), the State of South Carolina, and the Natural Re-sources Defense Council (NRDC) have now replied to the Staff's petition for review.
Through the present brief, 'the Staff responds jointly to the replies filed by the parties to the proceedir.g.
Discussion The arguments raised by the parties in opposition to the Staff's petition for review have, we believe, been fully addressed in the previous filings 2/ In order to preserve its jurisdiction during the pendency of its review, the Commission issued an interim protective Order on September 7, 1979 requiring that the routing information be protected until comp ~ietion of the Commission's review and decision.
3/ Pursuant to a directive from the Commission, the Staff submitted a further brief on the routing information on September 14, 1979.
4f Pursuant to the Commission's Order, Mr. Jesse Riley, President of the Carolina Environmental Study Group, and Mr. Richard P. Wilson and Mr.
Samuel L. Finklea, representing the State of South Carolina, executed affidavits of non-disclosure and were provided access to the protected route information. No representative of the Natural Resources Defense Council executed an affidavit of non-disclosure.
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. by the Staff and will not be reargued at this time,except to again re-emphasize the necessity under the Commission's regulations for the proper safeguarding of route information.
However, in the interest of complete-ness, the Staff would briefly address three ' points.
1.
The primary issue to be resolved in this proceeding is whether the route information provided by the Applicant pursuant to 10 C.F.R.173.37 is subject to protection under the provisions of 10 C.F.R. 62.790(d)(1).
Since the promulgation of the interim rule (10 C.F.R. 673.37) on June 15, 1979, the Staff has consistently treated route information provided pursuant to this regulation as safeguards information protected in accordance with the requirements of 10 C.F.R. 62.790(d)(1). And in ruling upon the Staff's re-quest'for an irt camera hearing, the Licensing Board did not specifically reject this interpretation. Only one intervenor, NRDC, has now questioned the Staff's interpretation of these rules.
(NRDC Response at 4; see also Transcript of Oral Argument (September 10, 1979) at 18.)
While the regulations may be subject to language interpretation, we none-theless find the intervenors' unsupported and unreasoned argument against the protection of route information unpersuasive.
In the Staff's view, a literal reading of the regulations reflects what it perceives to be the Commission's policy to safeguard spent fuel in transit. Absent express guidance to the contrary, this view represents an appropriate interpretation of the regulations and, we submit, should prevail.
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. 2.
The Conmission nust also determine whether the Licensing Board and the Appeal Board erred in refusing to review the route information in_
camera prior to concluding that its confidentiality had been compromised through prior public disclosures.
The determination of whether the route infonnation has previously been disclosed during the earlier consideration of routes in this proceeding is solely a question of fact; and the resolution of this issue can be accomplished by a comparison of the presently proposed alternate routes with the originally proposed primary route.
Upon such a review, the Com-mission can, we believe, readily conclude that the earlier disclosure of the primary route does not preclude the need for appropriate precautions in now litigating the undisclosed alternate routes, and that the imposition of such safeguards remains both necessary and appropriate.--5/
3.
Finally, it is important to again emphasize--contrary to the arguments of the intervenors--that this is not a case where the public is being denied access to necessary information. While precautions are, and indeed should be, taken to preclude unlimited disclosure of route information, Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Unit 1 and 2),
ALAB-410, 5 NRC 1398, 1404-1405 (1977), public intervenors in this proceeding, as well as the State of South Carolina, do have access to the route informa-tion in question and in an appropriate proceeding can fully and effectively litigate each of their contentions relating to such information. Ibid.
5/ The variance in the routes can best be demonstrated by the fact that, upon review of the alternate routes, counsel for the State of South Carolina requested to be heard on one of the proposed alternatives which he claims was not previously examined.
See South Carolina Response at 7.
1638 255 Conclusion Thus,for the reasons set forth above and in the "fiRC Staff Petition for Review and Request For An Interim Protective Order," dated September 7,1979, and the "f4RC Staff Response to the Commission's Inquiry of September 12, 1979,"
dated September 14, 1979, the fiRC Staff's petition for review should be granted; a determination should be made that the routing information furnished to the NRC Staff by Duke Power Company pursuant to 10 C.F.R. 673.37 is safe-guards information exempt from disclosure pursuant to 10 C.F.R. 92.790(d)(1);
and the interim protective order with respect to routing information should be made permanent.
Respectfully submitted, O V.440 M
s Edward G. Ketchen Counsel for f4RC Staff Dated at 3ethesda, Maryland this 10th day of December,1979.
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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 RESPONSE TO RESPONSES OF CAROLINA ENVIRJHMENTAL STUDY GROUP, NATURAL RESOURCES DEFENSE COUNCIL, AND THE STATE OF SOUTH CAROLINA IN RE DISCLOSURE OF ROUTE INFORMATION" dated December 10, 1979, in thd 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 10th day of December,1979.
- Dr. Joseph' M. Hendrie, Chairman
- Dr. John H. Buck U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Appeal Washington, D. C.
20555 Board U.S. Nuclear Regulatory Commission
- Dr. Victor Gilinsky Washington, D. C.
20555 U.S. Nuclear Regulatory Commission Washington, D. C.
20555
- Michael C. Farrar, Esq.
Atomic Safety and Licensing Appeal
- Mr. Richard T. Kennedy Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission 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 Licensine 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 1638 257
. W. L. Porter, Esq.
- Mr. Samuel J. Chilk, Secretary Associata 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 David S. Fleischaker, Esq.
Suite 709 1735 Eye Street, N.W.
Washington, D.C.
20006 J. Michael McGarry, III, Esq.
Debevoise & Liberman 1200 Seventeenth Street, N.W.
Washington, D. C.
20036 Mr. Jesse L. Riley, President Carolina Environmental Study Group f
854 Henley Place g',g {
[7 Charlotte, North Carolina 28207 Edward G. Ketchen Richard P. Wilson, Esq.
Counsel for NRC Staff Assistant Attorney General State of South Carolina 2600 Bull Street Columbia, Scuth 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 1638 258 U.S. Nuclear Regulatory Commission Washington, D. C.
20555
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