ML19270H840
| ML19270H840 | |
| Person / Time | |
|---|---|
| Site: | 07002623 |
| Issue date: | 12/27/1979 |
| From: | Horeling R NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML19270H841 | List: |
| References | |
| NUDOCS 8001040106 | |
| Download: ML19270H840 (12) | |
Text
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i UNITED STATES OF AMERICA
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NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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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) iiRC STAFF MOTIONS RELATIVE TO SECURITY ISSUES Introduction, At the last nearing session in this proceeding which extended from Septem-ber 10 through September 13, 1979, the Licensing Board deferred any eviden-tiary presentations in subject areas involving infomation that could be claimed to be proprietary under the provisions or 10 CFR 2.790 until such time as the Commission made a detemination as to whether the routing infoma-tion in this proceeding was to remain under a protective order. The routing question is presently before the Commission and a schedule has been established for soliciting the views of the parties.
See the Commission't Order of November 2,1979. However, any Commission ruling limited to the appropriate-ness of treating certain routing infomation as proprietary under 10 CFR 2.790 will leave to be resolved in the present proceeding the question of whether the many other details of the proposed security plan for the trans-shipment of spent fuel from the Oconee facility to the McGuire facility
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.2-should be accorded protecter' status under 10 CFR 2.790. The State of South Carolina has expressed an interest in aspects of the proposed security plan y
beyond routing. The Natural Resources Defense Council (NRDC) may also have an interest in aspects of the plan beyond routing.
In the Staff's view, litigation of addii.ional aspects of the proposed security plan requires refined contentions and special procedures. Thus, the Staff moves the Licensing Board to require further specificity from NRDC with regard to any contention it may wish to litigate in the transportation security area, and where such issues are to be heard, institute an in, camera proceeding to resolve these matters.
Discussion Although NRDC originally proposed a contention dealing with the issue of sabotage of spent fuel in transit, subsequent events, particularly the promulgation of new Connission regulations in this area leave uncertainty as to the current status of NRDC's interest in this area.
NRDC originally raised the adequacy of security when dealing with spent fuel shipments in its Contention 6.
This contention was originally stated as:
Shipment of spent fuel from Oconee to McGuire will be vulnerable to sabotage or other malevolent acts and this represents a serious risk.
The contention so stated was admitted by the Board at the Prehearing Confer-ence held in Bethesda, Maryland on March 13,1979 (Tr.135).
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Subsequent to that ruling, specifically on July 16, 1979, new safeguards regulations (" Physical Protection of Irradiated Reactor Fuel in Trart:,it," 44 r-Fed. Reg 34467; June 15,1979; 10 CFR 6 73.1 and 5 73.37) went into effect.
In response to this new development, NRDC orally restated its contention on the record.
(Tr. 343)
The restated contention reads as follows:
Applicant has failed to demonstrate that it is in compliance with applicable Commissiopjregulations with regard to safeguarding spent fuel shipment.-
However, NRDC's restatement was equivocal.
The main concern raised by NRDC related to spent fuel shipments through populous areas.
NRDC stated:
If the Applicant proposes or if the Staff requires them to propose to ship this away from what would generally be called populous areas, which means a different routing than they are now planning, that will dispose of the issue probably for our purposes.
I say prgtyably because Dr. Cochran would have to look at it.
(Tr. 346.)v 1/
While the Licensing Board pennitted NRDC to restate its contention it did not rule upon the admissibility of the contention (Tr. 348).
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This position is consistent with the " Statement Regarding Safeguards for Spent Fuel Shipments" dated May 18, 1979 of Thomas B. Cochran, Ph.D.,
Staff Scientist, Natural Resources Defense Council, wherein Dr. Cochran concluded:
Assuming the proposed rule detailed in the April 18, 1979 report, identified above, was accurately represented to me in the May 17 meeting, and assuming it contains the key elements noted above, I believe the safeguards of spent fuel shipments most likely will be adequate.
This statement accompanied the May 21, 1979 letter to the Board from NRDC Staff Counsel. Both the letter and statement are attached to this filing.
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_4-Consequently, it is not apparent whether NRDC presses a contention in this area.
The regulations, specifically 10 CFR 6 73.37(a)(3), require that routes avoid, where practicable, heavily populated areas. The criteria applied by the Staff in perfonning its review are detailed in NUREG-0561.3.f The Staff review in this area is complete, and should NRDC have any continuing concerns in this area, the specific routes are available 'inder the procedures of the Commission's November 2,1979 Order.
Even if NRDC is still pressing its contention in this area, greater specificity with regard to the real issue is required. NRDC recognized this itself when it said:
If we move it through the populous areas, we need them to take a corrective measure. That is. where the dispute is.
If they go through populous areas, we would hone our contention down precisely to what it is the Applicant is proposing.
(Emphasis supplied, Tr. 347)
Certain concerns emerge from this history of NRDC Contention 6.
First, it is not clear at this point whether NRDC is still proposing any contention in this area. Second, the contention, as restated by NRDC on the record, is general, and was so recognized by NRDC when it comitted to restate the contention should it have a lingering concern in this area.
Should NRDC wish to pursue this area, a more particularized contention is in order. To 3]
" Physical Protection of Shipments of Irradiated Reactor Fuel," Interim Guidance, June 1979.
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- resolve these concerns, the Licensing Board should direct NRDC to state its position with regard to its Contention 6.
NRDC should either withdraw the contention or restate it in sufficiently specific fonn to pennit discovery and testimony preparation.
An interest in this area has also been evidenced by the State of South Carolina. The State's interest was identified in its August 31, 1979 letter to Counsel for the NRC Staff.
Under Item 3:
The State is interested in this regard in exploring the actual application of the new Part 73 regulations to the specific shipments proposed.
By virtue of the Board's detennination to defer issues which might require in camera sessions, this concern of the State was not addressed at the September hearings.
(Tr. 3975) However, the Staff is prepared to address this issue when hearings in this proceeding resume in jn camera sessions.
The concerns of the State of South Carolina will require testimony regarding compliance on the part of the Applicant with the Connission's regulations in this area. The potential concerns which may be raised by NRDC in a restated contention will also require Staff testimony.
Staff testimony will involve the presentation of details and specifics of the actual security provisions to be implemented by Duke Power Company. As the Staff noted to the Board in its letter of August 31, 1979, the details of the actual security provisions 1681 225
are subject to protective treatment pursuant to 10 CFR 9 2.790(d)(1).O That provision reads:
c The following information shall be deemed to be commercial or financial infonnation within the meaning of 5 9.5(a)(4) of this chapter and shall be subject to disclosure only in accordance with the provisions of 6 9.12 of this chapter:
(1) Correspondence and reports to or from the NRC which identify a licensee's or applicant's procedures for safe-guarding licensed special nuclear material or detailed security measures for the physical protection of a licensed facility or plant in which licensed special nuclear material is possessed or used; In his attached affidavit (Attachment C), Donald J. Kasun indicates that he has reviewed the submittals of Duke Pcwer Company and has detemined that they identify the Applicant's procedures for safeguarding licensed special nuclear material. As such, the information is to be protected under 5 2.790(d)(1).N Any testimony provided by the Staff to respond to the issue raised by the State of South Carolina or to any potential contention framed by NRDC would reveal the same infomation and should, therefore, also be protected.
The Staff requests that a Protective Order be issued instituting _in camera proceedings relative to the issue raised by the State of South Carolina and 4]
Attached to the August 31, 1979 letter, was a form of Protective Order (Attachment A) and a form of Affidavit of Non-Disclosure (Attachment B) for consideration by the Board in dealing with any future Staff motion for the institution of in camera proceedings. The Protective Order and Affidavit of Non-Disclosiire have been modified to reflect the current circumstances and are provided al Attachments A and B to this filing for the Board's convenience.
_5]
See Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2) ALAB 410, 5 NRC 1398,1403-04 (1977).
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relative to any potential contention framed by NRDC in the area of spent fuel transportation security. The Protective Order should direct those e
parties wishing to participate in an _in, camera session to execute Affidavits of Non-Disclosure sufficiently in advance of any resumed hearings to pennit the Staff to comply with the requirement of 10 CFR 5 2.743(b) which requires that copies of proposed written testimony be served at least 15 days in advance of the session of the hearing at which that testimony is to be presented.
In addition, should any party seek to qualify an individual as an expert in this area in accordance with the direction of the Appeal Board in Diablo Canyon, supra, such party should be directed to do so sufficiently in advance of the resumption of hearings to avoid delay.
Conclusion The NRC Staff moves the Licensing Board to direct NRDC to clarify whether its Contention 6 remains a litigable issue in this proceeding and, if so, to further direct NRDC to specify that contention in expeditious fashion for purposes of discovery and testimony preparation. The NRC Staff further moves the Licensing Board to issue a Protective Order instituting _in, camera proceedings for the treatment of the spent fuel transportation security issue at resumed hearings.
Respectfully submitted, d,
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c.li m e
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Richard K. Hoefling l
Counsel for NRC Staff Dated at Bethesda, Maryland this 27th day of December,1979 l68l 22[
e Attachment A r-UNITED STATES OF AMERICA FUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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DUKE POWER COMPANY
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Docket No. 70-2623 (Amendment to Materials License SNM-1773 for Oconee Nuclear Station )
Spent Fuel Transportation and
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Storage at McGuire Nuclear Station) )
PROTECTIVE ORDER ON SECURITY MEASURES RELATIVE TO SPENT FUEL TRANSIT The Licensing Board orders that the issue of security of spent fuel in transit from the Oconee facility to the McGuire facility be treated at jn camera sessions. At such sessions, witnesses may be interrogated by a party representative or counsel who has executed an Affidavit of Non-Disclosure in the form attached.
Such representative or counsel shall maintain all protected information in confidence as required under the terms of the Affadivit of Non-Disclosure.
It shall be the responsibility of such representative or counsel to assure that transcripts of the j]1 camera sessions are maintained in confidence.
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Those portions of any filings including testimony revealing protected infoma-tion shall be segregated to the extent practicable and shall be protected in r-the manner required by the Affidavit of Non-Disclosure-Filings containing protected infomation shall be served only on appropriate Commission employees and counsel or other representatives executing the attached affidavit.
Such filings shall be served only in a heavy, opaque inner envelope bearing the name(s) of the addressee (s) and the statement " PRIVATE.
TO BE OPENED BY ADDRESSEE ONLY." Counsel and representatives shall take such precautions as are necessary to ensure that only they will open envelopes so marked.
Counsel and representatives are also directed to notify the Licensing Board if at any time they have reason to believe that documents containing protected infomation have been lost or misplaced (for example, because an expected paper has not been received) or that protected infomation has otherwise become available to unauthorized persons.
Should any party representative or counsel seek the assistance of an expert to assist at such i_n_ camera sessions, it shall be the responsibility of such n
party representative or counsel to demonstrate to this Board's satisfaction that such an individual is qualified in accordance with the requirements of the Appeal Board, In the Matter of Pacific Gas & Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-410, 5 NRC 1398 (1977).
In addition, each such individual so qualified will be required to execute an Affidavit of Non-Disclosur'e in the fom attached. All Affidavits of Non-1681 229
Disclosure are to be executed and served upon the parties at least 20 days prior to the resumption of hearings in this proceeding.
e IT IS S0 ORDERED.
FOR THE ATOMIC SAFETY AND LICENSING BOARD Marshall E. Miller, Chairman Dated at Bethesda, Maryland this day of
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Attachment B UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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1 DUKE POWER COMPANY (Amendment to Materials License
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Docket No. 70-2623 SNM-1773 -- Transportation of
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Spent Fuel from Oconee Nuclear
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Station for Storage at McGuire
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Nuclear Station)
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AFFIDAVIT OF NON-DISCLOSURE
, being duly sworn, deposes and says:
1.
As used below, an " authorized person" for receipt of the infomation described below is a Commission employee or a person who has been invited by the Atomic Safety and Licensing Board to execute and has executed an affidavit to the same effect as this one, or a person who already possesses all of the infomation described below.
2.
I will not disclose to anyone except an authorized person any infor-mation, specifically dealing with the safeguarding of spent fuel in transit, involved in this proceeding and not already disclosed in the public record of this proceeding (" protected information").
I will protect such infomation in written form, including those portions of transcripts of in camera hearings, filed testimony and other documents which reveal such infomation so that 1681 23I
. it will at all times be under the control of and cannot be read by anyone except an authorized person.
I will not make copies of documents revealing c
protected information without the Licensing Board's approval or direction except as may be necessary to prepare papers for participation in further proceedings in this case.
So long as I possess protected infomation, I shall continue to take these precautions until further order of the Licensing Boa rd.
3.
If I prepare papers containing protected infonnation in order to participate in further proceedings in this case, I will assure that any secretary who must receive protected information in order to help prepare such papers has read this affidavit, has agreed to abide by its terms and will not reveal protected infonnation to any other person.
4.
I make this agreement with the following understandings.
I do not waive any objections that any other person may have to signing an agree-ment such as this one.
I do not hereby waive whatever right I may have to publicly discuss or disclose any information received under this agreement if I have also obtained or do obtain the same information without the use of a protective agreement.
5.
I affirm under penalty of perjury under the laws of the United States that I will do the above to the best of my ability.
Executed this day of
, 1979.
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