ML20041D762
| ML20041D762 | |
| Person / Time | |
|---|---|
| Site: | Catawba  |
| Issue date: | 03/05/1982 |
| From: | Callihan A, Foster R, Kelley J Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| 81-463-010L, 81-463-10L, ISSUANCES-OL, NUDOCS 8203090135 | |
| Download: ML20041D762 (56) | |
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s UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION gg 2.
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k MAR 08198E" Ta AT MIC SAFETY AND LICENSING B0ARD a g #p*
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s BEFORE ADMINISTRATIVE JUDGES B
James L. Kelley, Chairman Dr. A. Dixon Callihan g 91032 Y
LP Dr. Richard F. Foster
$EPNC
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In the Matter of
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ASLBP Docket No. 81-463-010L
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DUKE POWER COMPANY, et al.
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(Commission Docket No.
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50-413-0L and 50-414-0L)
(Catawba Nuclear Station,
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Units 1 and 2)
)
March 5, 1982
)
MEMORANDUM AND ORDER (Reflecting Decisions Made Following Prehearing Conference)
On January 12 and 13,1982, the Board conducted a prehearing conference in York, South Carolina, pursuant to 10 CFR 2.751a.
The primary purpose of the conference was to consider pending petitions for intervention and contentions filed in support of those petitions.
Admission of Parties.
Petitions to intervene had been filed by four organizatiSns and by the State of South Carolina.
Three of the petitioning organizations appeared and participated in the conference:
Carolina Environmental Study Group ("CESG"), represented by its President, Mr. Jesse L. Riley; Palmette Alliance (" Palmetto"), represented by counsel, Mr. Robert Guild; and Charlotte-Mecklenburg Environnental Coalition l
8k 8203090135 820305 gp j
PDR ADOCK 05000413 i
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PDR I
. ("CMEC"), represented by its Chairman, Mr. Henry A. Presler.
Ti'e standing of these organizations is described in their petitions and is not disputed by the Applicantd/ or the Regulatory StaU.
In its response to the CMEC petition, the Staff had raised a question about Mr. Presler's authority to represent that organization. At the conference, Mr. Presler served copies of authorizing affidavits from representatives of constituent organizations of CMEC, thus laying the Staff's question to rest.
A petition for intervention is to be granted if it establishes standing and pleads at least one litigable contention with reasonable specificity.
10 CFR 2.714; Philadelphia Oectric Co. (Peach Bottom Atomic Power Station), 8 AEC 13, 20 (1974).
As discussed hereafter, each of the
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three organizations appearing at the conference put forward one or more contentions which we find admissible, or at least conditionally admissible.
Accordingly, the Board orders CESG, Palmetto and CMEC admitted as parties l
to this proceeding.
In addition, the petition of the State of South Carolina to intervene as an interested State pursuant to 10 CFR 2.715(c) is granted.
The State was represented at the hearing by Mr. Richard P.
Wilson, an Assistant Attorney General. However, the State did not participate actively, nor did it file any separate contentions.
The fourth petitioning organization, Safe unergy Alliance of Charlotte, North Carolina, did not file contentions in support of its initial petition and, although served with notice, did not appear at the i
(
-1/
Duke Power Co. is the lead Applicant in this proceeding.
It also acts as agent for the other owners of the facility, North Carolina Municipal Power Agency Number 1, North Carolina Electric Membership Corporation, and Saluda River Electric Cooperative, Inc.
l i
. prehearing conference.
W. Presler of CMEC filed an affidavit from an officer of Safe Energy Alliance stating that CMEC would represent the interests of the Alliance in the proceeding.
As stated on the record, in these circumstances the Board considers the separate Safe Energy Alliance petition as naving been withdrawn. Tr. 3-4.
Alternatively, that petition is denied for want of prosecution.
Specificity of Contentions and Available Information. The three petitioning organizations filed a total of fifty-two contentions.2/
The Applicants and the Staff separately oppose admission of forty-seven of these contentions.
Because the Applicants and the Staff largely disagree about the handful of contentions they would admit, all but two of the Intervenors' fifty-two proposed contentions are' opposed by the Applicants, the Staff, or (in most cases) by both.
We are admitting half of the Intervenors' proposed contentions, in whole or in part.
However, only one of these contentions is bei g admitted unconditionally.
Twenty-five contentions are being admitted subject to certain specified conditions.
--2/
CMEC filed 4 contentions, Palmetto 29, and CESG 19.
Palmetto also filed an additional 19 contentions identical to CESG's 19.
CESG labeled 3 other paragraphs as " contentions" (numbered 4, 7 and 14) snich we view as legal argument and procedural requests.
CESG's paragraphs 7 and 14 are pertinent here; they request that the prehearing conference (which we take to mean this conference held pursuant to 10 CFR 2.751a) not be held until 90 days after the Staff's environmental impact statement and safety evaluation report are av ail able. They argue that it is ' essential to permit CESG... to take into consideration Staff's views in regard to environmental...
matters" in framing contentions. While we find substantial merit in this argument, we believe that the 90-day guideline in 2.751a and the Commission's " Statement of Policy on Conduct of Licensing Proceedings" (46 Fed. Reg. 28533) indicate the need to get the proceeding started earlier, as we are doing here.
However, by granting conditional admission to contentions that now may be unduly vague only because certain documents are presently unavailable, we are being responsive to the very real problem CESG raises. CESG's paragraph 4 speaks to certain legal issues we find it unnecessary to reach.
. By f ar the most frequent basis for objection by both the Applicants and the Staff is an alleged lack of specificity in the contention.
In some cases, we find this objection to be well taken.
But in others where we also find a lack of specificity, we nevertheless reject that objection at this stage of the proceeding because of the limited information presently available to the Intervenors.
Because of the importance in these rulings of the concept of specificity in contentions, a few words about that subject are in order before we turn to the individual contentions before us.
Section 714(b) of the Commission's Rules of Practice (10 CFR 2.714(b))
requires that "the bases for each contention [be] set forth with reasonable specificity."
It is not enough, for example, merely to allege that aspects of an applicant's plans will not comply with Commission regulations. A contention must include a reasonably specific articulation of its rationale
-- e.g., why the applicant's plans f all short of certain safety requirements, or will have a particular dat.rimental effect on the environment. This specificity requireserh. serves several purposes.
It f acilitates board determinations whether contentions are litigable.
For example, a contention is to be excluded if it is, in substance, an impermissible attack on a Commission rule, or if it is not within the scope of the proceeding.
See Philadelphia Electric Co., supra at 20.
Another purpose of specificity in contentions is "to help assure that other parties are sufficiently put on notice so that they will know at least generally what they will have to defend against." Philadelphia
. Electric Co., supra at 20 (emphasis added). However, this language does not imply a high standard of specificity at this early stage of the proceeding. As discussed below (at page 13) the purpose of revising and refining contentions at the final prehearing conference is to make the issues for hearing more specific in the light of completed discovery.
Reflecting this aspect of the process, most preparation for hearing takes place after the final prehearing conference.
The specificity requirement is a perfectly reasonable one, so long as the f actual information necessary for specificity is available to an intervenor. Unfortunately, because of the way the hearing process is structured that is often not the case, particularly in the early stages of the proceeding. Under the rules, a petitioner for intervention in an operating license case like this one must file at least some contentions before the first prehearing conference, which the rules contemplate will take place a few montns after the application is noticed for hearing.
At that time, the applicant's final safety analysis report ("FSAR") (or at least most of it) and environmental report ("ER") are available to petitioners for intervention.
However, a number of other potentially imprtant documents usually are not then available, most notably the Staff's Safety Evaluation Report ("SER") and draft environmental impact statement and the report of the Advisory Committee on Reactor Safeguards.
In addition, certain of the applicant's documents, such as emergency plans, may not be available.
Tnat is the situation here.
Of the key documents just mentioned, only the Applicants' FSAR (most of it) and Environmental Report are now available for public inspection. The Staff's SER and impact statement,
. most of the off-site emergency plans and portions of the FSAR have not yet been written.
In addition, the Applicants' security plan, while in existence, is being withheld pursuant to Commission regulations.
The Applicants and the Staff nevertheless argue that the Intervenors should be required to plead all of their contentions with reasonable specificity by the first prehearing conference, even contentions in areas like emergency planning, where the documents necessary for informed pleading are not yet available.
The Applicants contend that:
[W] hen Palmetto Alliance seeks to put in issue a matter which arguably is not covered in Applicants' filings, it is incumbent on it to specify precisely the nature of its allegation and provide in detail the bases for it.... The Commission's procedures contempl ate, and require, adequate contentions to be framed on the basis of information available to petitioners at the time the notice of hearing is published. Absence of documents which are not available until the liRC Staff completes its review of an application is not good cause for f ailing to provide adequate specification of, or basis for, a contention, or for reserving the right to raise a contention at a 1ater time.3/
The Staff, in substance, concurs.4/ The Applicants and the Staff concede, as they must, that an intervenor may file a contention later, pursuant to 10 CFR 2.714(b), based on information disclosed in a document first becoming available at a later date.
But there's a catch.5_/
In their view, such " late" contentions would have to surmount all of the 3/
Applicants' Response to Palmetto Contentions, pp. 8-9.
~~4/
Staff Response to Contentions, p. 8, note 14.
See also Tr.
110-114, 215, 231, 322-323.
5_/
For a similar catch, see Heller, Catch 22, p. 47 (Dell ed.).
, hurdles applicable to contentions filed late for other (and usually less justifiable) reasons.6_/
The Board believes that the Applicants' and Staff's stated position on this question is (1) not required by the rules as written or by prior decisions, (2) unreasonable, and (3) probably in conflict with governing st at utes.
As to the first point, the rules as written do not explicitly require that all contentions be filed before the first prehearing conference, subject only to a highly restricted right to file a " late" contentionlater.1I And the cases cited by the Applicants and Staf'f have held only that some (by inference, at least one) contentions should be pled by that time. See Wisconsin Electric Power Co. (Koshkonong Nuclear Plant), 8 AEC 928; Northern States Power Co. (Prairie Island Plant), 6 AEC 188, aff'd, BPI v. AEC, 502 F.2d 424 (C.A.D.C. 1974). Those cases emphasized the " wealth" of information available at the early stages of the proceeding in the applicant's FSAR and environmental report, the assumption being that at least some contentions could 'be gleaned from these typically
--6/
Section 2.714(a) erects five separate hurdles to "nontimely" contentions, only one of which (good cause) would presumably be surmounted by a showing of new information.
In the main, these criteria are inappropriate for application to a contention that is
" late" for reasons wholly beyond the intervenor's control. For example, the last criterion concerns the extent to which the contention will " broaden the issues or delay the proceeding." An issue based on new information will almost necessarily broaden the issues and it may well delay the proceeding.
But the responsibility I
for those effects must be borne by the applicant or the Staff for producing a " late" informational document.
7/
A literal reading of the last sentence of 10 CFR 2.714(b) arguably leads to that conclusion. As we demonstrate, however, other compelling considerations require a different conclusion.
We should, l
in addition, read section 2.714(b) in the light of our duty under 10 CFR 2.718 "to conduct a f air... hearing."
l l
a
, voluminous documents.
But none of those cases focused on the situation that concerns us here -- i.e., forcing an intervenor to plead specific contentions in an area, such as emergency planning, where the relevant information simply is not yet available. Apparently in recognition of the unf airness in such a squeeze play, it has not been uncommon for licensing boards to admit vague contentions conditionally, subject to later specification, or to defer rulings on some contentions until the necessary documentation is available.
See, e.g., Commonwealth Edison Co. (Byron Nuclear Power Station), Memorandum and Order of December 19, 1980, p. 13; Commonwealth Edison Co. (Quad Cities Station), Order of October 27, 1981, p. 4.
The Appeal Board's very recent decision in Tennessee Valley Authority (Browns Ferry Nuclear Plant), ALAB-664, confirms that licensing boards have discretion to defer rulings where a document (such as a draft environmental impact statement) is needed in order to assess a contention.
The unreasonableness of the Applicants' and Staff's position has been suggested by the preceding discussion and is perhaps best illustrated by an example from this case.
The off-site emergency plans for counties and municipalities near the f acility are being prepared, but are not yet compl ete.
Tr. 110-112.
The regulations plainly contemplate that the adequacy of such plans, in their specific details, can be contested by intervenors.
At this juncture, possibly in reaction to l
the Applicants' and Staff's position that it must plead all of its c.ontentions now, and not having any idea what those plans will contain, Palmetto tenders two broadly-worded emergency planning contentions, to
_ ~ - _ _
< which the Applicants and Staff then object as lacking in " specificity."
Placing the cart squarely before the horse, the Applicants argue that Palmetto should be required to express its " concerns" now, that it "should know if they have a concern" before the emergency plans are even prepared.
Tr. 112.
There are several practical reasons to reject this argument.
In the first place, it is very difficult to express concrete concerns about emergency planning in the abstract, without reference to specific emergency pl an s.
It is probably a waste of time for all concerned, including this Board, for intervenors to develop " concerns" that emergency planners, working inaependently, may be fully addr.essing.
The sensible approach is for a potential intervenor first to study proposed emergency plans, and then to decide whether he finds flaws in them which he may wish to contest.
Moreover, forcing intervenors to shoot in the dark may encourage f abrication of artificial, frivolous and perhaps even spurious contentions, because by necessity they are based on little more than imagi nation.8./ From its quite dif ferent perspective, the applicant may have no incentive to f acilitate the early completion of all emergency pl ans. This is so because, under the Applicants' and Staff's theory we are rejecting, if emergency planning or any other aspect of a nuclear power 8/ For example, in the Diablo Canyon case, t he intervenors eventually gained access to the f acility's security plan on the basis of a prior contention that the f acility was " vulnerable to sabotage not only from l and, but from sea."
Pacific Gas and Electric Co. (Diablo Canyon fluclear Power Pl ant), 5 NRC 1398,1400 (19//). We suspect that the Diablo intervenors had no prior knowledge about the security plan and that this contention was made up out of whole cloth.
. plant application is simply delayed until after the first prehearing conference, defects may be effectively insulated from scrutiny in the hearing process.
Such a result seems inconsistent with the hearing requirements of the Atomic Energy Act. 42 U.S.C. 2239.
Indeed, we think that the Applicants' and Staff's position on the specificity question is, as they would have us apply it here, of very questionable legality not only under the Atomic Energy Act (as to safety issues), but also the National Environmental Policy Act (NEPA) (as to environmental issues). 52ction 189(a) of the Atomic Energy Act provides for a hearing upon the request of an interested person in certain kinds of licensings, including operating license proceedings.
To be sure, the courts have held that this right is not absolute, that it may be conditioned, for example, upon the filing of contentions prior to discovery.
P I_ v. AEC, 502 F.2d 424 (C. A.D.C.1974). However, the BPI decision did not discuss and apparently assumed that information requisite to formulation of contentions was available in that case. Where, as in this case, much of the necessary information is not yet available, a court might well hold that section 189(a) requires an equivalent opportunity to frame a contention promptly following the availability of the information.
If that were not allowed, the exercise of the right to a hearing would be impermissibly hindered, or virtually foreclosed, by an unreasonable procedural requirement.
NEPA requires that environmental questions be open for consideration "to the fullest extent possible" throughout the agency review process, including the hearing process. NEPA, Section 102.
In the landmark Calvert
. Cliffs decision, the court invalidated several provisions of the AEC's original implementing rules, viewing the agency's " crabbed interpretation of NEPA" as "a mockery of the Act."
Calvert Cliffs Coordinating Canmittee
- v. AEC, 449 F. 2d 1109 (C.A.D.C. 1971).
Among the nullified rules was one which barred licensing boards from considering environmental questicas unless they were raised by a party. The court viewed the rule as an unnecessary and therefore illegal restriction on the " fullest possible" consideration of the environment.
Similarly in the present context it could be forcefully argued that a " rule" requiring the pleading of all NEPA contentions before the Staff's impact statement is even written is an unnecessary and therefore impermissible restriction on agency consideration of the environment, yet another " crabbed interpretation of NEPA."9/
In light of the foregoing considerations, the Board rejects the argument that we should disallow a proposed contention for lack of specificity if a document likely to provide the necessary specifics is not yet available.
In this case, such documents include the Staff's Safety Evaluation Report and draft environmental impact statement, portions of the Applicants' FSAR yet to be supplied, and the off-site emergency plans for
-9/
Tne Applicants' and Staff's position here is more questionable legally than the rule struck down by the Calvert Cliffs' court.
That oosition undercuts the right of an adversary party to raise litigable issues about the Staff's impact statement, the traditional and most commonly-used means of testing a statement. Calvert Cliffs imposed on licensing boards a NEPA requirement to raise environmental issues sua sponte, a much less significant way of testing an impact statement than through adversary contentions.
i l
i l
. the counties and municipalities near the plant.10,/ As discussed contention-by-contention hereafter, contentions that may be addressed in one of those documents will, if they are otherwise acceptable, be admitted
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conditionally despite a present lack of specificity. The intervenor advancing such a contention will be required to review the relevant document promptly after it becomes available, and to then either abandon or revise the contention to meet the specificity requirements of 10 CFR 2.714(b).
Revised contentions are to be filed within 30 days following receipt of the relevant document.b The adequacy of any revised contentions will be judged by the general principles applicable to contentions, including specificity.
However, the additional criteria normally applied to late contentions under 10 CFR 2.714(a)(1)(i)-(v) will not be applied to contentions revised pursuant to this paragraph; their
" lateness" is entirely beyond the control of the sponsoring intervenor.
What we have just said applies only to, contentions for which little or.
no information has been supplied by the Applicants in their FSAR or Environmental Report.
If" substantial relevant information has been supplied and referenced in the Applicants' opposition pleading, the contention will be judged for specificity now and rejected if found unduly vaque. However, should a document containing new information or analysis on the subject become available later, the Intervenor may within 30 days l
-16/ The security plan for the facility stands on a somewhat different footing and is treated separately at pp. 37-38, below.
-11/ We are admitting a few somewhat vague contentions on the condition that they will be revised and made more specific following discovery.
Discovery on these contentions is to be completed within 90 days of l
this Memorandum and Order, and revised contentions are to be submitted l
within 30 days thereafter.
l
. file a revised contention based upon it.
Again, the criteria of 10 CFR 2.714(a)(1)(i)-(v) will not be applied to such a contention.
Debatable questions about whether information or analysis is "new" will generally be resolved in the Intervenor's f avor.
Specificity Through Discovery. An additional consideration affects the level of specificity required at this initial stage of the proceeding.
Our admission of contentions will be followed by an extended period of discovery, during which the intervenors can learn additional f actual
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details about their areas of concern. The principal functional purpose of contentions at this juncture is to place some reasonable limits on discovery.
Boards have recognized that.those discovery limits can, without prejudice -to the hearing process, be more broad ~ and general than the revised contentions that can be developed after discovery and which will ultimately structure the hearing. See, e.g., Southern California Edison Cjl. (San Onofre Nuclear Generating Station), Partial Initial Decision, slip op., pp. 10-12.
The rule prescribing a final prehearing conference after the close of discovery (10 CFR 2.752) explicitly contemplates amending the
" pleadings" and clarification of the " issues." For these reasons, we now apply less stringent standards of specificity than we will apply at the final prehearing conference.
Contentions Admitted.
CMEC Contentions 1-4 are admitted, subject to the following conditions:
. (1)
Should these contentions go to hearing, the focus will be on the Staff's impact statemer.t, not the Applicants' Environmental Report, because the substantive NEPA obligation is discharged through the impact statement.
Accordingly, CMEC shall review the Staff's draft environmental impact statement promptly af ter it becomes available and revise these contentions, as appropriate, in 'the light of that statement.
(2)
CMEC Contention 1 is revised to read as amer %d on page 2 of the "HRC Staff Response to Reworded Contention 1," dated February 22, 1982.
Mr. Presler's proposed revised version of CMEC Contention 1, dated February 1,1982, is withdrawn.
CMEC Contention 3 is revised to read as agreed to by the parties and as set forth in the CMEC "Further Proposal" pleading dated February 22, 1982. The Staff's objection to the reference
'in Contention 3 to Contention 2 is overruled.
(3)
The Commission's Black Fox decision generally authorizes litigation of contentions about the long-term health effects of radiation, the thrust of Contention 4.
See Public Service Co. of Oklahoma (81ack Fox Station),12 NRC 264 (1980).
In view of the Applicants' stipulation to this contention, we are not inclined to reject it at this juncture in spite of its lack of specificity.
However, this contention shall be made more specific or withdrawn af ter tre Staff's draft impact statement is av ail abl e.
Palmetto Contention 27 is admitted unconditionally.
The following Palmetto contentions are admitted conditionally, in
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whole or in par.t, subject to the specified conditions:
. Palmetto 1: This contention about long-term health effects is similar to CMEC Contention 4.
It is somewhat more specific in referencing the work of particular researchers, but it still falls short in that regard.
It might, for example, specify the respects in which the BEIR III report and the Commission's food chain analyses are allegedly deficient.
It is admitted conditionally, subject to further specification following availability of the draft environmental impact statement.
The Applicants specifically object to the part of this contention which focuses on health effects from the uraniun fuel cycle, viewing it as an attack on the values established by rule in Table S-3.
This argunent is answered by footnote 1 to Table S-3, which states in pertinent part:
Table S-3 does not include health effects from the effluents described in the Table.... These issues may be the subject of litigation in the individual licensing proceedings.
Palmetto 2: This Contention faults the Applicants and the Staff for failing to assess the impacts of accidents beyond the design basis of the facility.
This contention is premature.
Pursuant to the Commission's Statement of Interim Policy, 45 Fed. Reg. 40101, the Staff will be assessing the impacts of such accidents in its environmental impact statement. The Scaff's draft impact statement should explicitly address the concerns being raised in this contention or explain why they need not be addressed.
The Staff's "special circumstances" argument at pp.10-11 of its response seems to assume that consideration of the effects of serious accidents need only be included in an impact statement for a facility that meets that test. While that was once the rule under certain Commission adjudicatory decisions (see Public Service Co. of Oklahoma (Black Fox
. Station),11 NRC 433 (1980)), those decisions have now been superseded by the Statement of Interim Policy under which all final impact statements issued after June 9,1980 are to include such consideration.I2I The special circumstances test applies only to plants under construction where particular design changes might be warranted.
We make no judgment here about whether such changes are warranted for Catawba because we are ruling on a contention that does not call for design changes, only " assessment of impacts." As it does on other contested issues in an operating license proceeding, the Licensing Board will rule in the first instance on whether
-the impact statement's consideration of accidents pursuant to the Policy Statement is adequate.
The Policy Statement calls for discussion o'f severe accidents in applicants' environmental reports filed after JJ1y 1,1980.
Since the report for Catawba was filed prior to that date, no such discussion is necessary.
Accordingly, this contention is admitted, subject to striking "The Applicants" from the first sentence and to the condition that it will be revised and made more specific in light of the draft impact statement; otherwise, it shall be withdrawn.
Palmetto 3 and 4: These contentions question the adequacy of emergency plans for the facility in various respects. As drafted, they are extremely vague. However, they are vague because the emergency plans for the counties and municipalities near the plant have not yet been prepared.
In' these circumstances, about all an intervenor can do is express very
-12/ The Commiss' ion's words are that the Staff should " initiate treatments of accident considerations... in its ongoing NEPA reviews, i.e., for any proceeding at a licensing stage where [an FES] has not yet been issued.
Id,. at 40103.
. general concerns. The most he should be required to do at this point is express an interest in the subject. These contentions are admitted, subject to their revision for specificity promptly following the availability of the pertinent plans.
Revised contentions in this area need not be restricted to the subjects referred to in these contentions.
Palmetto 6, 7 and 18:
These contentions, as drafted, are at best only marginally acceptable from the standpoint of specificity.
- However, they are being. admitted conditionally because they concern the actual safety of construction and operation of the Catawba plant, issues that are at the core of our responsibilities as an operating license board. There were indications at the conference that some further specification of these contentions could be made now.
Tr. 118, 176-177 These contentions can be explored in discovery and we expect the intervenors to make them more specific, or to withdraw them, following discovery.
Palmetto 8:
This contention questions the qualifications of reactor operators and shift supervisors for' Catawba because of an alleged lack of relevant operating experience. This content ion is sufficiently specific and would be allowable but for our concern whether it may constitute an impermissible attack on a Commission rule. The information about qualifications contained in Section 13.1 of the FSAR does not speak directly to the allegation in this contention that the operators and supervisors for Catawba lack sufficient " hands on" experience with large PWR's.
The Applicants' pleading arpues (at p.17) that there is a pending rulemaking on this subject which precludes this contention, and refers to SECY-81-84 No rulemaking has been initiated as a result of that Staff proposal; the matter is presently under study.
Therefore, that proposal does not bar this contention.
However, we desire the parties' views on
. whether the present rules in 10 CFR Part 55, particularly sections 55.11 and 55.24, bar this contention.
In addition, certain requirements relating to operator qualifications have been imposed as part of the Three Mile Island Action Plan in NUREG-0737.
Cl arification Item I. A.2.1.
Pursuant to the Commission's Guidance Statement of December 16, 1980, the sufficiency of TMI requirements may be contested by intervenors in licensing cases, suggesting that the present contention is allowable. However, certain of these TMI requirenents were subsequently proposed in rule form, including certain experience requirements for senior reactor operators.
-(f)(1)(ii).
See Licensing Requirements for Pending Operating License Applications, Proposed Rule, 46 Fed. Reg. 26491.
We desire the views of the parties on whether these rather convoluted developments have the effect of barring litigation of Palmetto's Contention 8.
These views should be served by March 26, 1982.
In the meantime, this contention is admitted conditionally, subject to reconsideration in light of the parties' further views.
Palmetto 10:
This contention seeks consideration of the economic costs of severe (so-called " Class 9") accidents. As noted above with respect to Contention 2, consideration of such accidents will be included in the Staff's draft impact statement including, in the words of the Interim Policy Statenent, " socioeconomic impacts that might be associated with emergency measures during or following an accident." This contention is admitted, subject to its being revised or withdrawn following availability of the draft impact statement.
P almetto 14, 15, 16, 17 and 38 (CESG 11): These five contentions all relate in one way or another to the expansion of the spent fuel storage
. pool at Catawba since the construction permit was issued and to the consequent possibility that the Applicants may later store spent fuel from other Duke f acilities (such as McGuire and Oconee) at Catawba. These contentions raise questions about the safety and environmental acceptability of transportation of spent fuel to Catawba and its storage there, under both normal and accident conditions.
We can rule out certain aspects of these spent fuel contentions at this point. We are disallowing Contention 14 because, as we read it, it seeks to avoid application of the Table S-4 values about transportation impacts solely on the ground that the spent fuel would be destined for the Catawba storage pool, instead of the hypothetical reprocessing plant referred t.o in the Table S-4 rule (10 CFR 51.20(g)(1)). The contention does not postulate why the impacts of transporting to these different types of destinations would be different. We think they would be substantially the same and therefore that the Table S-4 values would apply.
Palmetto 17 would require consideration of the Applicants' provisions for caretaking of the spent fuel following the expiration of any Catawba operating license.
This proceeding concerns the operation of the Catawba Station.
This contention lies beyond its scope and is rejected. Moreover, che issue is generic within the nuclear power industry and is currently subject to Commission rulemaking.
The Appeal Board has accordingly ruled that litigation of this topic would constitute a collateral attack on the rulemaking.
Public Service Electric and Gas Co.
(Salem Nuclear Generating St ation),14 tac 43, 68-69 (1981).
The first two sentences of Palmetto 38 (CESG 11) are in the nature of legal argument about the expansion of the fuel pool.
The last sentence
. seeks to raise a safety issue (albeit an unclear issue) about the consequences of enlarging the pool.
We are rejecting Contention 38 as a separate issue.
However, the substance of the matters sought to be raised in the last sentence may be raised under the broader spent fuel contentions we are conditionally admitting, as explained hereafter.
From what we know now about the Applicants' plans for the Catawba spent fuel pool, we tentatively believe that consideration of the safety and environmental aspects of transporting and storing fuel there from other Duke f acilities would be appropriate in this proceeding.
However, we need
_ additional information and the views of the parties on certain issues before we can make final rulings on contentions in this area.
These questions are prompted by the following considerations.
Applicants state in their application (at pp.11-12):
Applicants further request such additional source, special nuclear and by-product material licenses as may be necessary or appropriate
... for authority to store irradiated fuel from other f acilities....
Duke has no present plans to utilize this storage alternative but, rather, considers it prudent planning to have this storage as one of the alternatives available.
The application apparently does not request explicit authority to transport (as distinguished from authority to store) spent fuel from other Duke f acilities to Catawba.
The jurisdiction of a licensing board is normally established by the notice of opportunity for hearing and the subsequent notice of establishment of the board.
See Pacific Gas and Electric Co. (Diablo C'anyon Plant), 3 NRC 73, 74, note 1 (1976).
Here, those notices refer only to the operating licenses for Catawba.
There is no explicit reference to
. materials licenses for storage and transportation of fuel from other Duke f acilities.
Duke's plans for handling of spent fuel, including the " Cascade Plan,"
were the subject of extended discussion in Duke Power Co. (Amendment to Materials License),12 NRC 459, 469-72 (1980), rev'd,14 NRC 307 (1981).
There, environmental analysis was carried out for only a small part of the larger plan, and an " assessment" was deemed sufficient.
However,- if we are being asked to authorize comparatively more extensive shipment and storage of fuel, inclusion of this subject in the environmental impact statement for the operating licenses may be necessary.
In light of the foregoing considerations and information available to
~
them, the Applicants and the Staff are to address the following questions; the Intervenors are free to comment on such of these questions as they choose:
1.
Applicants only to answer. What are Duke's plans with reference to storing fuel from other Duke facilities at Catawba.
Be more soecific than in the quoted sentence from the application.
Describe the " Cascade
.~
Plan"; what is its present status?
2.
What licensing authority is Duke presently seeking to transport or store spent fuel from other facilities to or at Catawba? What additional authority does it intend to seek? Does Duke intend to secure now, in conne: tion with the operating licenses for Catawba, al' of the authority it needs to transport and store spent fuel at Catawba from other i
facilities to the capacity of the Catawba storage pool?
l l
i i
. o
, 3.
Does this Board presently have jurisdiction over applications to store or transport spent fuel from other f acilities?
If not, could it and/or should it be given such jurisdiction?
4.
Does the Applicants' environmm.tal report include an adequate discussion of any plans to store or transport spent fuel from other f acilities at Catawba?
5.
Staff only to answer. Does the Staff intend to include in its draft impact statemert discussion of transportation of spent fuel from other f acilities to Catawba and its storage there?
If so, why? If not, why not?
Responses and any comments on thesE questions shall be mailed by March 26, 1982.
Palmetto 15 concerns the environmental costs of both the transportation of spent fuel to Catawba from other Duke nuclear plants and its storage in the used-fuel pool.
This contention is admitted conditionally, provided the words "Away From Reactor (AFR)" are stricken from the first paragraph and "as an AFR" are stricken from the third paragraph.
The Applicants' request that "may" be substituted for " intend to," also in the third paragraph, is denied.
This is an Intervenor's contention and it is free to allege any intention it thinks it can prove.
Palmetto 16 is similar to 15, except that it refers to the public health and safety aspects of used fuel storage and transportation at 1
C'at awb a.
This contention is also conditionally admitted.
23 -
Contentions 15 and 16 are being admitted conditionally at this juncture.
Tne Board will consider revision of these contentions in light of tne information we receive in response to our questions.
Palmetto 21:
Tnis generally-worded contention charges the Applicants with failure to develop certain procedures required by NUREG-0737 in response to the Three Mile Island accident.
The Applicants respond that they have submitted certain analyses to the Commission Staff and that the Staff is currently evaluating certain " emergency procedures."
~
However, the section of the FSAR referenced by the Applicants (Section 1.9) says only that they are "in the process of developing new procedures."
It does not say what those procedures are.. In these circumstances, the Intervenors cannot be f aulted for filing a non ' specific contention. This contention is admitted conditionally.
The Applicants are directed to supply to Palmetto a copy of their proposed procedures for complying with these TMI requirements, now or as soon as they are available. Palmetto is thereafter required to provide a revised and acceptably specific contention J
or to withdraw this contention.
Palmetto 22:
This contention concerns two matters.
The first is an alleged absence of sufficient instrumentation to detect inadequate core cooling. This part of the contention is denied.
Section 1.9 (pp. 10-11) of the FSAR contains a description of such instrumentation and Palmetto does not specify any deficiencies in this description or even refer to it.
The final sentence of the contention addresses the interaction of human f acters.nd efficiency of operation.
This part is admitted conditionally pending at 614aisity to Palmetto of the review of the control room design t
n w
n-
. by the Applicants (Section 1.9-(3)' of the FSAR).
Thereafter the contention will be withdrawn or be stated in more detail.
Palmetto 24:
This contention about the ability of the nall wners of the f acility to produce the funds necessary to operate it safely is admitted, subject to deletion of the next to the 1ast sentence beginning with the phrase "An accident with...." As pointed out by the Staff, Commission regulations on financial qualifications do not require applicants to demonstrate capability to absorb the costs of severe accidents.
The Staff's argument that the contention is not sufficiently specific is not well taken. The Applicants' attempt to equate this contention with CESG's Contention 22 fails; the latter contention (which we are rejecting) does not refer to the possible financial vulnerabilities of small owners.
Palmetto 25:
This contention about costs of decommissioning is similar to the prior contention; it is admitted subject to deletion of the last paragraph, and subject to further specification following discovery.
Palmetto 26:
It is unclear to the Board whether or to what extent the South Carolina Department of Health and Environmental Control will be responsible for monitoring the operational effects of Catawba, either as a matter of Commission safety regulations or as a factor in the environmental cost / benefit analysis. Various aspects of monitoring activities are discussed in detail in Chapter 6 of the Environmental R,eport, including a brief description of a pre-operational monitoring progran by the South Carolina Department of Health and Environmental
~
Control.
Because this contention is not tied in with this discussion and
. 1 is objectionable on specificity grounds, it is disallowed, with one possible exception.
The contention also refers to the State agency's
" responsibilities in the event of an emergency."
Because the off-site emergency plans are not yet available, we do not know what role the agency may play in an emergency.
Accordingly, this limited aspect of the contention is admitted conditionally, until those plans are available and pending its revision or withdrawal.
CESG Contentions 8, 9,13 and 16 and 1713/ are admitted, in whole or in part, subject to the following conditions:
CESG 8 (Palmetto 35): The first sentence of this emergency planning contention is premature because the ten mile plume exposure pathway energency planning zone has not yet been drawn by State and local of fici als.
This portion of this contention is admitted, subject to the Intervenor's reviewing the State and local plans when they are available as to tne appropriateness of that EPZ boundary.
The second sentence alleges that a " radius of 30 miles should be the basis for emergency planning." We read this to mean that the plume exposure pathway EPZ prescribed in the rule as "about ten miles" should be expanded to 30 miles in the circumstances of this case. This is an impermissible attack on the Commission's rule (10 CFR 50.47(c)(2)). Should the Intervenors wish to pursue this matter, the proper course would be to file appropriate papers 13/ Tnese same contentions are also advanced by Palmetto as their contentions nunbered 35, 36, 40, 42 and 43.
These Palmetto contentions are also admitted, subject, of course, to the same conditions.
N
. seeking a waiver of tae ten-mile feature of the rule, pursuant to 10 CFR 2.758.
CESG 9:
The first sentence of this contention is similar to Palmetto Contention 2; both seek consideration of serious accidents in the Staff's environmental impact statement. This contention is admitted conditionally, subject to its being revised or withdrawn in light-of the draf t environmental impact statement's discussion of serious accidents. We do not, by this conditional admission, necessarily endorse the need to consider the entire spectrum of PWR accidents; the scope of the Staff's obligation is basically contained in the Commission's Policy Statement.
The second sentence of this contention is rejected.
The abilities of local officials to cope with the consequences of serious accidents would be more appropriately explored in the emergency planning context. New contentions concerning the functions and capabilities of local officials can be submitted promptly af ter the local area plans become available.
CESG 13:
This contention alleging irregularities in welding practices is similar to Palmetto Contentions 6, 7 and 18.
It is admitted conditionally, subject to further specification, or withdrawal, following discovery.
The conference transcript indicates that further specificity l
could be provided.
Tr. 348-350.
CESG 16:
This contention is similar to parts of Palmetto Contention 22.
It is quite vague as draf ted. However, it is being admitted conditionally, subject to further specification or withdrawal after the Applicants have supplied to CESG a copy of the control room
~
design review promised in Section 1.9-1(3) of the FSAR.
. CESG 17: This contention lacks specificity in that it fails to state how an infestation of the Asiatic clam Corbicula might affect the performance of the cooling tower system and why such an effect should be of health and safety concern or impact the environment.
The potential for Corbicula infestation was brought out in the FES (p. 2-36) at the construction permit stage.
However, the Applicants do not refer in their pleading to any discussion of Corbicula in their FSAR or ER.
In these circumstances,' we admit this contention conditionally, subject to clarification of the issue and much greater specificity following discovery.
Palmetto Contentions Rejected.
Palmetto 5: This diffuse contention expresses a generalized concern about serious accidents at Catawba.
It questions the use of the Reactor Safety Study in accident analyses, and contends that serious accidents (presumably at reactors generally) are " plainly credible" after Three Mile Isl and.
Tnis proposed contention f alls short of specificity requirements, whatever standard one applies. There is no nexus of any kind, direct or incirect, between the very generalized concerns being expressed and the specific licensing actions we are considering. Tne possibility of accidents at a particular reactor can only be meaningfully analyzed with reference to specific scenarios and the design of that particular facility.
Were Palmetto to postulate a specific serious and credible accident scenario at Catawba, we might accept a contention based upon it. Cf.
Public Service Co. of Oklahoma (Black Fox Station),11 NRC 433 (1980).
In the absence of such a credible scenario, this contention must be rejected.
Palmetto 9 and 31 (CESG 2):
These contentions address an explosive nydrogen-oxygen reaction produced within the reactor containment following l
a loss-of-coolant accident. As held in Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station), ALAB-655,14 NRC 799, these contentions are denied because the issue is being addressed in the i
rule 11aking process.
As recently as December 23, 1981 (46 Fed. Reg.62281),
tne Commission published a proposed rule for comment.
It is recognized, however, that hydrogen issues may be litigated in individual licensing proceedings provided the challenger postulates a credible scenario for a loss-of-coolant accident producing hydrogen. Absent such a scenario and in view of the pending rulemaking, these contentions are rejected.
Palmetto 11:
This contention seeks to inject increased costs of construction into the environmental cost / benefit analysis at the operating license stage.
The second sentence makes it clear that it is an attempt to reopen the cost / benefit analysis conducted at the construction permit st age.
While construction costs can be significant at the construction permit stage when it comes to choosing among alternatives, they are usually irrelevant at tne operating license stage.
In the first place, costs of construction of all power plants have risen sharply in the past several years.
Tne costs of the benefits associated with building a plant have also risen. No claim is made that the costs of construction of Catawba have risen any f aster than those of other nuclear plants, or of other goods
~
and services in the economy. More fundamentally, the attempt to inject
. increased costs into'the cost / benefit equation at the operating license stage simply comes too late.
Even assuming that the costs of construction of Catawba have gone up an inordinate a11ount, the fact remains that those funds nave already been spent or are committed at this late stage of 1
construction. Thus there is no practical point in considering such " sunk" costs now.
Cf. Public Service Co. of New Hampshire (Seabrook Station),
5 NRC 503, 530-536 (1977).
Palmetto 12:
This contention states that capital-intensive forms of energy (presumably including nuclear power plants) place added burdens on a tight capital market and increase interest rates in the economy as a whole.
This may or may not be true. However, exploration of this broad economic tnesis is f ar beyond the relatively narrow scope of this proceeding. The argument would be more appropriately put to an economic committee of the Congress.
Palmetto 13:
This contention about the effect of Catawba on the area labor market is also beyond the scope of this operating licensing proceeding. We are concerned with whether the Catawba nuclear power plants meet the safety rules of the NRC and whether their benefits will outweigh the environmental costs of operation. We are not concerned, at least at tnis juncture, with the ntaber of jobs Catawba creates, either as a construction project or as an operating facility, and, by comparison, how many jobs investments in conservation might have created had Catawba not been built.
Palnetto 19 and 45 (CESG 19):
These contentions address the Catawba Emergency Core Cooling System.
Palmetto 19
. first alleges that the expected performance of the system has not been correctly predicted and in support cites what are described as published criticisms of the methodology embodied in the analysis put forth in the Com.nission's Reactor Safety Study (WASH-1400). Additionally, Palmetto 19 together with Palmetto 45 and CESG 19 allude in an unclear manner to a part of the reactor and allege that part is so poorly supported as to, in the limit of complete support f ailure, result in blockage of ports provided for entrance of emergency cooling water for the reactor core. The contention is so unclearly stated, even in the oral presentation (Tr.179 ff, 362), as to preclude identification of the item of equipment under discussion.
Therefore, both as a challenge to Commission regulations for emergency core cooling and as a collection of unclear statements lacking specifics on equipment, these contentions are rejected.
Palmetto 20:
This contention postulates that occupational radiation exposures will not be as-low-as-reasonably-achievable ( ALARA) because certain equipnent (specifically the steam generator, the reacter vessel and neutron shield bolting) will require extensive repairs and because the FSAR does not adequately consider occupational exposure from various other occurrences that are not specifically described.
This contention is disallowed because it fails to provide any reasonably specific basis for the assertion that ALARA requirements of 10 CFR 20.1 will not be met.
The Applicants have set forth in Section 12.1 of t.he FSAR their progran for "(e)nsuring that occupational radiation exposures are as low as reasonably achievable ( ALARA)." The contention, nowever, does not question tnis program or any part of it.
Spec ul ation
. that large collective doses of radiation might be received by repairmen at some future time because of the premature failure of equipment is not grounds for a showing that ALARA principles were ignored.
Tne Commission has under development, but has not yet published, a proposed rule concerned specifically with occupational ALARA. Should Palmetto Alliance wish to pursue the subject matter of this contention, participation in the making of the proposed occupational ALARA rule would be an appropriate avenue.
Palmetto 28: This contention seeks to raise "ATWS" (Anticipat'ed Transients Without Scram) issues into this individual licensing proceeding.
The thrust of the allegation is that the Applicants have failed to demonstrate that the risk from an ATWS event is.such that there is a reasonable assurance that the Catawba plant can be operated prior to the completion of the Commission's pending rulemaking on that subject. The Applicants in this case do not have the burden of making any such deaonstration.
The Commission has made these determinations, as stated in its recently initiated rulemaking:
The Commission believes that the likelihood of severe consequences arising from an ATWS event during the two to four year period required to implement a rule is. acceptably small.... On the basis of these considerations, the Commission believes that there is reasonable assurance of safety for continued operation until implementation of a rule is complete. 46 Fed. Reg. 57521.
It is clear from the quoted language that the Commission wishes to confine these generic issues to the generic rulemaking context. The Catawba f acility will, of course, be subject to the outcome of the ATWS rulemaking.
. Palmetto 29:
Alluding to problems that have cropped up at other nuclear power stations, Palmetto Alliance asserts that the Applicants should go back to the drawing board and try to ferret out as yet unrecognized interactions of systems, particularly the control systems and plant dynamics, that could have impacts on health and safety of the general public.
Palmetto Alliance makes no attempt to establish a nexus between the undefined systems interaction problems encountered at other reactors and Catawba, to identify the specific systems of concern, or to postulate
- the kind of impact that might endanger the safety and health of the general public.
Consequently, this contention is muct, too vague to be admitted and is disallowed.
~
CESG Contentions Rejected.
CESG 1 (Palmetto 30): This contention seeks to inject the question of "need-for-power" into the proceeding.
Such a contention is barred by a new rule, which provides in pertinent part that --
Presiding officers shall not admit contentions proffered by any party concerning need for power or alternative energy sources for the proposed plant in operating license hearings.
Tne supplementary information statements accompanying the proposed and final rules explicitly recognize that an exception to the rule may be O
. sought upon a showing of special circumstances pursuant to 10 CFR 2.758.
46 Fed. Reg. 51776; 47 Fed. Reg.
.14/
CESG 3 (Palmetto 32):
This contention addresses the alleged inadequacy of the risk analysis by the Staff of operation and decommissioning of the Catawba station, ~ and of the transport and storage of radionuclides produced there.
The contention introduces a concept of
" totality of risks" which purports to be a single nisnber as a measure of a projected life-of-the-station effect on the public. Tr. 314-316. The contention does not include sufficient descripcion of that concept to establish the feasibility of its determination.
Even so, this is basically a generic issue.
Whereas the contention is claimed to bc site specific, completely absent are delineations of those characterics of this site which bear upon the analyses and cause them, in some special manner, to entail investigation to a depth beyond that usually required by existing regul at ions.
Accordingly the Board rejects this contention for lack of specificity.
CESG 5 (Palmetto 33): This contention alleges that the construction permit cost / benefit analysis has become defective and that the power to be produced by Catawba will be more expensive than a number of alternatives.
This contention is also barred by the Commission's new rule (quoted in the discussion of CESG 1), which bars consideration of non-nuclear alternatives at the operating license stage.
-14/ Our rulings on CESG Contentions 1, 5 and 12 are deferred and are to be effective upon the effectiveness of the new rule.
That will occur 30 days following its publication in the Federal Register pursuant to 5 U.S.C. 553(d).
. CESG 6 (Palmetto 34): This contention represents yet another attempt to inject costs for Catawba and a resulting unfavorable cost / benefit ratio into this operating license proceeding.
It also attempts to bring in need-for-power by claiming that earnings from Catawba will be " undeserved" because the facility is " unneeded." These issues are not relevant to the narrow focus of the cost / benefit analysis at the operating license stage.
CESG 10 (Palmetto 37):
This contention calls for an " adequate crisis relocation plan" as a part of emergency planning. The phrase is not defined in the contention but it was made clear by CESG at the prehearing conference that " crisis relocation" means an area to which people could be moved permanently in the event of a nuclear disaster. Tr. 341. The Commission's emergency planning rules do not require establishment of such a permanent facility. Accordingly, this contention is an impermissible attack on the rules.
~CESG 12 (Palmetto 39): This contention alleges that since the construction permit the Applicants have embarked upon a variety of programs designed to decrease load growth. The implication is that these actions have reduced need for power. As noted in discussion of CESG 1, however, the Commission's new rule bars consideration of need for power from operating license proceedings.
CESG 15 (Palmetto 41): This contention seeks to litigate the possible effects of an electromagnetic pulse (EMP) on Catawba.
It is disallowed.
J An electromagnetic pulse of the type described by petitioners is generally pastulated to result from the detonation of a nuclear weapon at high altitude as an act of war. Petitioners do not contend otherwise or suggest how an EMP affecting the Catawba plant could be produced by other than a
. hostile act.
Consequently we view this contention es an impermissible challenge to Commission regulation 10 CFR 50.13 and concur with the action taken on a similar contention by the Licensing Board for the Perry facility.
Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant),
14 NRC 842.
See Siegel v. AEC, 400 F.2d, 778 (C. A.D.C.1968).
CESG 18 (Palmetto 44): This contention is disallowed for lack of the requisite specificity. There is no claim that components of the Catawba reactors do not meet reference temperature requirements.
Section 5.3.1.5 of tne FSAR and Tables 5.3.1-4 and -5 show how the Catawba pressure vessels will comply with the fracture toughness requirements of 10 CFR Part 50, Appendix G.
The contention makes no reference to this showing. Moreover, no link is established between temperature and " reactor embrittlement."
Finally, even assuming there is a problem at the Oconee Unit, the contention does not link Oconee with Catawba.
In sum, this contention does not contain a sufficiently clear statement to put the Applicant and Staff on notice of the crux of the Intervenor's concern.
CESG 20 (Palmetto 46): Petitioners are concerned that the drinking water of communities downstream from Lake Wylie will become contaminated by
~
radioactive materials accidentally released from Catawba. The release of i
concern is postulated to result from "an accident such as happened at Oconee," or from "---any one of a variety of as yet unencountered 1
operational errors." The Oconee reactor is of a substantially different design tnan Catawba and the unsupported assertion that a similar accident could occur at Catawba is, at best, very tenuous. We note that the FSAR includes detailed discussions of the proposed Catawba liquid radwaste I
system, including analyses of possible accidents and their effects.
See
- Sections 3.5, 5.2, 11.2 and 15.7.
This contention should, at the least, reflect an awareness of these discussions.
The vagueness of this contention provides no basis for arguments about the source or nature of the radioactive materials, how they might reach Lake Wylie, or on the nagnitude of the additional exposure that might ensue to people downstream wno drink the water.
Consequently, this contention does not meet the requirements of 10 CFR 2.714(b) and is disallowed.
CESG Contention 21 (Palmetto 47):
This contention asserts that the Applicants' Environmental Report is deficient in respect to the consideration of some radioactive sources and to the water exposure pathway.
The Connission's Staff is very explicit about the content of environmental reports.
Section 3.5.1 of-Reg. Guide 4.2 (NUREG-0099) specifies the source terms (including tritiun) that are to be included.
Section 5.2.1 of Reg. Guide 4.2 specifies the exposure pathways (including water) that must, as a minimum, be covered. Further, Reg. Guide 1.109 provides detailed guidance for the calculation of radiation doses from both liquid and atmospheric pathways.
In this instance, Intervenors have had an opportunity to study the Environmental Report which is the particular document in contention. This document does, in fact, contain the type of information alleged to be missing.
See Sections 3.5.1.1.4, 5.2.4.1, 5.2.4.2.
If some specific sections or tables of the report are believed to be deficient the contention should have specifically identified them. This contention is disallowed for lack of specificity.
The Comnission fulfills its obligations under the National Environmental Policy Act, in part, by the issuance of its own environmental
_ 37 -
assessment and environmental statements.
Environmental reports prepared by applicants (sometimes found to be deficient) are major source documents used by the Commission's Staff. When the Staff's draft environmental statement for Catawba is issued, Intervenors will have an opportunity to study it and to submit comments about any item of concern, including source terms, environmental pathways, and health effects.
However, any additional contentions on this subject will have to be based on new information.
Contention 22 (Palmetto 48):
The first sentence of this contention about dilution of ownership refers to " responsibility and liability," but
~
it does not say for what.
We have admitted Palmetto Contention 24, which addresses the ability of the small owners to produce the funds needed to operate the plant.
This contention may overlap that contention, but it seems to add nothing of substance.E The remainder of this contention must also be disallowed because it does not raise any issue properly cognizable in an operating license proceeding.
The NRC is not concerned with whether purchasers of nuclear generating capacity enter into unf avorable agreements.
The Security Plan.
Palmetto Contention 23 ' alleges in general terms that the Applicants have not developed and demonstrated an adequate security plan.
The contention does not point to any particular deficiencies presumably because, as the Applicants point out, "the security plan is protected under the Commission's regulations (10 CFR 2.790), and is not available for
-15/ We will consider later on whether allowance of substantially similar contentions by two or more intervenors should lead to consolidation of their presentations on that contention.
. inspection."
Applicants' Response, p. 78.
The Applicants go on to argue that Palmetto nevertheless "must frame [a sufficiently specific] contention on information available to it," this despite the f act that, by hypothesis, no information about the plan is available. We reject that argument.
In the instances of unavailable information discussed so far, we expected the problem to be resolved later when the relevant documents become publicly available. Here, however, unless ordered by the Board, the Catawba security plan will remain unavailable to the Intervenors.
Because an intervenor cannot reasonably be required to advance
_ specific contentions about a security plan he has never seen, and because Palmetto has expressed a formal interest in the Catawba plan, we believe we could at this juncture order the Applicants to grant Palmetto access to that plan.
We could now find that disclosure of the plans is "necessary to a proper decision in the proceeding."
10 CFR 2.744(e), as recently amended, 46 Fed. Reg. 51718, 51723. However, we are uncertain whether Palmetto is fully aware of the procedural complexities and costs associated with pursuing security plan issues under the Commission's case law and new regulations. For one thing, we would condition a disclosure order on Palmetto having obtained the services of a qualified security plan expert.
Beyond that, access would be conditioned as to time, place, note-taking, and the like.
A copy of the protective order entered in the Diablo Canyon case is enclosed as illustrative of these restrictions.
A copy of the new s.ecurity plan regulations is also enclosed.
A logical next step, then, is for Palmetto to consider the matter further and inform us, within ten days of receipt of this Order, whether it wishes to gain access to the Catawba security plan, subject to the kinds of
. conditions we have indicated.
If it wishes to proceed, we will then hear from the other parties and consider what further procedures are appropriate.
Service of Documents.
During the prehearing conference Palmetto complained that they had had only limited access to the Applicants' FSAR and Environmental Report and that their ability to formulate contentions had been significantly ha1pered.
Palinetto anticipated that they would have further difficulties of that nature unless documents yet to come -- particularly anendments to FSAR -- were served upon them. The Applicants rejected these complaints.
Without attempting to resolve these disagreements, the Board suggested that Palmetto make a motion that henceforth the Intervenors be served with copies of all relevant documents generated by the Anplicants and the Staff in connection with this operating license proceeding. This would include, most significantly, amendments to the FSAR, other formal technical exchanges between the Applicants and Staff, emergency plans generated by State and local authorities, the draft and final environmental impact statements, and the Staff's Safety Evaluation Report, as supplemented.
Tne Board believes that~ it would not significantly burden either tne Staff or the Applicants to serve a copy of the papers they generate in the future on the Intervenors.
This is suggested by the f act that the Staff and some applicants have provided such service in some past cases.
In the case of a particularly bulky document which the Applicants or the Staff believe will not be viewed as important by the Intervenors, the Applicants or Staff may seek the permission of the Board Chairman to serve only one copy of the document on one lead intervenor.
In such a case, the
. Intervenors would be expected to consult with one another and to share access to that document.
With that narrow exception, however, the Board grants Palmetto's motion for service of documents on all intervenors in this case.
Discovery and Schedule for Further Proceedings.
Discovery is to commence as of the date of this Order.
The scope of discovery is to be confined to the contentions we have admitted either conditionally or unconditionally.
The following filing dates are established by this Order:
Page of Order Matter Filing Date 12 Discovery on Contentions *6, 7, 18 and June 3 (for last 25 (Palmetto) and 13 and 17 (CESG) answers to inter-rogatories) 12 Revisions of above contentions July 6 12 Revisions of contentions presently 30 days after non-specific for lack of information receipt of relevant document 12 New contentions based on new 30 days after information receipt of information i
21 Information and comments on spent Maren 26 fuel questions i
17 Comments on operator qualifications March 26 questions 4
38 Wnether Palmetto wishes to pursue 10 days after their security plan contention receipt of this Order The schedule for other matters will be considered and established by the Board following receipt of scheduling suggestions from the parties, as discussed at the Prehearing Conference. Tr. 372-73.
. Orders of this kind are governed by 10 CFR 2.751a(d), which providts in pertinent part that --
Objections to the order may be filed by a party within five (5) days af ter service of the order, except that the regulatory staff may file objections to such order within ten (10) days after service.
The board may revise the order in the light of the objections presented and, as permitted by 5 2.71E(i), may certify for determination to the Commission or the Atomic Safety and Licensing Appeal Board, as appropriate, such matters raised in the objections as it deems appropriate.
The order shall control the subsequent course of the proceeding unless modified for good cause.
In view of the nunber and complexity of contentions in this case, the Applicants and the Intervenors may mail their objections to this Memorandum and Order no later than March 26, 1982.
Any Staff objections shall be
~
mailed by April 2, 1982.
THE ATOMIC SAFETY AND LICENSING BOARD h".
/49~s t
d afie,6 L. Kef l ey, Ch airmth AOKINISTRATIVE JUDGE C
b Dr. A. Dixon Gallihan ADMINISTRATIVE JUDGE l
Kicus ti Fw-Dr. Richard t. Foster ADMINISTRATIVE JUDGE Dated at Bethesda, Maryl and, this 5th day of March, 1982.
Enclosures:
1.
Diablo Canyon protective order 2.
Recent NRC regulations on l
security plans
rederal Register / Vol. 48. No. 204 / Thursday. October 22. 1981 / Rul;s cnd R:gulations 51718 c vone. whether for remunerat!on or not; a prohibit the unauthorized disclosure of facilities and special nuclear materials r accept, for himself or his family.fav.s certain safeguards information by NRC required to be protected under to CFR n2 or b nefit. under cc:uctances which r.ht licensees or other persons (4! FR 85459).
Part 73 should be included in the b2 co strued by reasonable persons as The proposed rule was pub!]shed in proposed rule. Upon further review the trJiaen 'ny the performance of his response to the provisions of a new Commission has concluded that I$*)$.
.'o pnva$ promises of y kind section 147. SAFECUARDS
. app!!cability should be more closely INFORMATION of the Atomic Energy related to Ge."signiDeant adverse effect Und.nt ur.
the duties of ofLee, mee a co u rr.rt., i.i m%o>ce has no r.. ate word Act. as amended. Public comment on the on the health and safety" standard which car,14
- 1. des en pub dary.
proposed rule was received from forty-contained in Section 147 of the Atomic
- a the Sve groups and organizations as Energy Act as amended. Accordingly, 7.re.pr in gbaine.:
cosemaa i.t. ca. r directN r indirectly, follows:
the scope of the rule has been reduced whJch is si.wr.s:st
.t wit e conscientious to apply only to those facilities. nucle'ar y
ental duties.
materials or transport activities for perforrner..e of his
- a. Never une any ir mation coming to him which there exists signl5 cant potential confidentally ut the..ormance of
'w -F e t ===e u
as means for making fg* i***'
for harm to the public health and safety governmer,tal dutie sis w.
s if the nuclear materials or facilities private prof 4t.
ver discovered.
ts.
- e a involved are intentionally misused or
- p. Frpo.c corg, tion wh 2
- 10. Uphold tyse pnnciple ever consclous g[
damaged.Therefore. Safeguards He****
1 Information is limited to information thet putJ.c g ce is a pubbe t. st.
There were no comments received regarding the physical protection of:
S!;ne d i of Octobe 1931.at All activities involving formula from public interest groups or quantities of st' ategic special nudear
.ude Regulatory Ce
- sion, r
or organiza tions.
- b Extensive revisions have been made material, both irradiated and En
.uu />irretorfor Operations, to the rule as a result of the comments unirradiated(most of the physical es.mi rmo-a.es. ses ami received.The most significant revisions protection information for activities involving a formula quantity of,
e, ccu rse-a8 include:
Excluding from the scope of the rule unirradiated strategic special nuclear activities involving less than a formula material would be classiSed as National 10 CFR Pcrts 2. 50,70, and 73 quantity of strategic special nuclear Security Information under 10 CFR Part Protection of Uncta.stned Safeguards material (except for spent fuel -
95).
shipments).
Operating power reactors, and Inform:. tic,n Deletinglimit cf error ofinventory Spent fuel shipments (but not routes ActNev: Nudcar Regulatory difference (LEID) information from the and quantities).
Commi". ion.
rule.
This separation is generally consistent,
Actron: Final rule.
Adding guard qualiScation and with the overallNRC Policy of graded training plans as items considered to be safeguards.The activities that remain suwAnz:The Nuclear Regulatory Safegucrds Information (those portions under the rule (with certain minor Comrcimen is amending its regulations that disdose facility safeguards exceptions such as non. power reactors) to require NRC bcensees and other features).
require protection by armed guards, persans to protect unclass! Sed -
Deeming information protection -
whereas the activities deleted do not.
sr.ftpards bformation against systems used by State and local polices Appropriate paragraphs of i 73.:1 have ur.r.u ncr.:ed dise!:sure.The rule force adequate to meet regulatory been modiSed to reflect this ecope establishts requirements and sets forth requirements.
change. In regard to the second point.
cend2tiens to be applied by NRC Reph asing $ 2.79](d)(1).
the Commission has determined 1;consees and other persons for the Not requiring the marking of generically that information concerning protecton of undessi5ed Safeguards documents more then one year old a licensee's or applicant's material information for operating power stored by licensee contractors. Such control and accounting or physical reactors, spent fuel sh:pments, and,
documents would be marked if and security program for special nuclear activitio invcMng fo=ula quantit:es of when taken from storage for use.
materiale not otherwise covered by strctuit. tpc cid nudecr material.
A. Discussion of Comments Resulting specific statutory exemptions,is a ; m..; or m Cecher ta 19E1 for in Chc. ges to ProposedRule commercial or financial informction for
- 2.7.;4 'r 1 2.N J'd)(1). 73.0 (jil cnd (11).
(1) Reduction in the Scepe of purposes of Freedo:n ofInfor=ation Act and 7101 (c). (b) cr.d (c)(1). All Applicction-A number of commenters (5 U.S.C. 552) (FO!A) requests. In order rc=cinir.r secticns will be effective on suggested that physical protection to reduce both the licensee's and the Jcnut.ry 20.10C-information for facilities that possess Codssion's ar%fnistrative burden ron rur;THER INFCnttAT1oM CONTACT!
only spe dal nuclear material oflo'w associated with licensees applying for a Mr. Donnld J. Kasun. Physical Secunty strategic significance (Category III) be withholding determination for each item Licensing Branch. Division of deleted from the rule considering the of such information submitted to the
- c. ' m E OL".ce cf Nadeer Mate-ial tr.all p:tential hazard of ruch materials. NRC under 10 CFR 2.79Xb][1).10 CFR E v wi 5 fgards. U.S. Nuc' car Ccmmenters also suggested that this 2.793(d)(1) has been a=cnded te dum
.o 2.s::.ry C:.n.mucn. hhingten.
type c! micr=ation when in the hands of such info =ation cenr.d:ntial D.C. :as';5. Phone 301-1 7-4010.
the NRC be withheld from public-co=mercialinformation under SUFMIUcNTARY INFORLtAT10Pc disdosure as commercially valuable exemption (4)of the FO!A.This (proprietary)Information.
continues in effect present procedures Dc'd: ground The Cc= mission agrees with both for such information.
On December :9. IsGO. the Nuc! car points. he criginal dete=ination of Nine ce=menters supported the Replat y Commission published for scope w as based on the assu=ption that retention and/or expansion of c = ment c propcted rule &at would Epprop.Ete info =ation pertinent to hil
$.790(d)(1) as an appropriate meiod
Federal Register / Vol. 46. No. 204 / Thursdry. Oct:ber 22. 1981 / Rules cnd RIgul:ti:ns 51719 for withholding material control and to indicate that any drawing or 1.imit off. site communication accounting and physical security document that substantially represents information that needs to be protected information not considered to be the final design of the physical security to communications used for security system would have to be protected. nis purposes.
Safeguards Information. nere were no-change eliminates the need to control Show that portions of any comments to the contrary.
p) Deletion o/l.imit of Error of much of the initialinformation, such as corresponden:e that contains
/nrentory Difference (LE/D) requests for bids. but still requires Safeguards Information would have to
.{
a::fon-A large number of protection of documents that are only be protected..
cc=menters recommended the deletion slightly different from the final version.
Remove from the rule and place in.
of 1.F.D ir.fermation for low enriched (6) Vita / Area Identification and guidance documents many of the umnium fabrication facilities on the f.ocotton-Several commenters noted detailed requirements relative to 1 asis that this information would not be that the proposed rule might be marking. transmission. and destruction -
very valuable to a diverter attempting to interpreted as requiring protection of of documents that contain Safeguards steal material within the limits of a thformation already in public Information.
statistical alarm threshold, documents, such as in the FSAR.
Note in i U44(e) the applicability of The Commission agrees and LEID specifically in regard to drawirgs that crimral sanctions. as well as civil information has been deleted from the show locations of safety relatea penalties, for violations of Board orders nJe (lJJiD information for activities equipment.The rule was therefore pertaining to Safeguards Information.
In olving fomula qucntities of strategic revised to ind;cate that only drawings or B. Discussion of Comments Not spm.i.! nuclar material would still be documents that explicitly identify items AcceptedBy C.c Commission classified under Part 95).
of safety.related equ!pment as vital for (1) Protection During Agency (3) Addition of Cuard Qualificcis,on purposes of physical protection are Proceedings--The adequacy of cnd Training Plans to the Rule-Ten required to be protected. (Note that th'e proposed to CFR M44(e)was comments were received on this matter, content of Appendix E has now been questioned by law firm commenters the rnost for any itern. Commenters incorporated into the text of the rule at representing licensees. ne amendment stated that guard qualification and paragraph,173m(b).) Other than as as proposed would confirm a presiding training plans contained. among other above, engmeenug and construction officer's authority to issue appropria.te things. site specific response procedures drawings that sfiow the locations of protective orders whenever protected and descriptions of facility safeguards safety related equiparent are not Safeguards Information is required in an fcaturcs. A review of several such plans considered Safeguards Information.
adju ca ory h n
in received by the NRC disclosed that (7) Acceptability of fresent Plotection
,, Y bs! as 6e wh!!e some plans were so Eeneral that Systems-Several commenters s
on e ed they could not be considered Safeguards suggested that specific physical g""h
,ty g e pu i Information, others contained specific protection requirements not be included common defense and security in the.
inform: tion that should be protected.
in the existing rule but that IIcensee or c ntext of adjudicatory hecnngs..
ted h ru!c has been amended to include State stcndard procedures be accefuded. pursuant to section147a of the Atomic those partions of guard qualificction and instead.no Commission has conc Energy Act of1954 as amended (the training plans that disclose site specific based on frequent NRC staff contacts.
Act). and to i= pose the mWmum festures of the physical protection that State end locci polica forces protect impairment of procedural rights, as
~
Information in a way that is equivalent required by section181 of the Act.The system.
(4) Cecadfathering.-Comments to the rule re'quirements. Accordingly, amend.nent makes it clear that the peinted out that certain organizations the rule has been revised to deem State physical protective measures cnd need
[e.g. r.rchitect/ engineering firms) may and local police information protection to know standards of proposed ( 733 l
have very large quantitles of old procedures acceptable. In regard to NRC would apply to Safeguards Information de cu.cn't that qualify as Safeguards licensees that fc!.!into the scope of the Iriformation but are rarely removed from rule, the Commission has concluded that in adjudicatory heanngs.
First. the commenters note correcuy.
storage. They suggested that this without formal requirements there but as a shortcoming, that i 2.744{e) information be exempted or at least would be no assurance of uniformity, l
given special consideration.The consistency or an adequate level of applies only to agency records and not to Safeguards Information possessed Commission agrees with this suggesdon protection across the industry. As only by an applicant. licensee, or t prt and her cmended the rule to.
evidenced by the comments received,'
contracter. A second objection wcs that nq1re :nniing of cocuments more then there i: censidcreble divergence of the proposed { 2.774(e)gives relctively cr.e yter old caly when they cre opinion as to whct conttitutes a weak authority to the licensing boards l
removed from storege. Storage. '
minimum cceeptable level, arotectica and cecess requirements (8) 0 Acr/fmorCAcoges-Based to prevent disclosure by intervenors cnd bowever, would still apply. Documents primcrily on comments received, their lawyers. The commenter esterted containing Safeguards information additional rule changes have been made that some showing of reliability should be required of such persons before located at the operating faci!!ty would to:
have to be marked regardless of age.
Permit Safeguards Informadon to be Safeguards Information is disclocei' fD * '.:.P.filt"Drwieg"Some trentpried by any ind!viduct nird the commenters stated thct the treters suggested that all revisions autheri:ed access under the rule.
proposed regulation gives inadequate
~
d c.w.=rs. no: pst the fincl. Le Show that matter othcr than guidance to the licensing bocidt cn the cenndered as Safeguards Information.' documents may contain Safeguards kind of protection intervenors should be i
Other commenters suggested that Informaticn.
required to give to Safeguards preliminary design end construction Allow use of ADP systems by Information.ne co== enters suggest l
drawings be specifically excluded from contractors ofliccasees.
that the restrictions used in the Diablo ~
l the rule.The Commission believes there Indicate that non security related Canyon case be adopted. See Pacific is come = erit in both suggestions, orders and procedures for guards need Gas cndElectric Co. (Dichlo Ccnyon Nuclear Power plcat Units 1 and 2)
/.ccordinrly. the rule has been changed not be protectei 1
Federal Register /.Vol. 46. No. 204 / 'niursdny, Octob:r 22, 1981 / Rules cod Regul2tions 51720 ALAB-600.12 NRC 3 (1980). Finally, the Safeguards Information should be fr~easortable necessity for disclosure.10 commenters suggest that the possibility inserted into the agency's rules as the CFR 2.744(e) as drafted requires a finding by the presiding officer that of criminal sanctions, as well as of civil commenters request.
For this reason also, the Commission disclosure is necessary to a proper penalties, be noted for violations of will defer to a later time the decision decision.ne presiding officer, as usual.
Doard orders pertaining to Safeguards whether it should stipulate any further will exercise a rule of reason in applying in response to these comments the guidance or rules for how the licensing the standard.The language used Information.
Commission has made one change to boards should write protective orders to accomplishes the same result and is pro;.osed { 2.744(e).That change notes protect Safeguards Information. At this generally consistent with the the applicebuity of criminal sanctions time the Commission believes thatits terminology in i 2.744.
by stating. for the purpose of section 223 opinion and those of the Boards provide ( (2) Trustworthiness Determinations-of the Act, that any order issued adequate guidance. See, Pacific Cos and A number of commenters disagreed with pursuant to i 2.744(e) with respect to Electric Co. (Diablo Canyon Nuclear the absence of a personnel clearance or Power Plant. Units 1 and 2). CLI 80-24.
screening program as a necessary Safeguards Inictmation be considered' en order issued pursuant to section 11 NRC 775 (1980) ALAB 410. 5 NRC condition for access to Safeguards 101b. of the AE Act.This is in accord 1398. (1977): ALAB 580.11 NRC 227 Information. noting that the traditional with section 147b. of the Act.
(1980):ALAB 592.11 NRC 744 (1980);
requirements for access to sensitive The Commission believes the other and ALAB 600,12 NRC 3 (1980).
Information include both "need-to-ccmments shodd not be adopted. It was One commenter also took the position know" and trustworthiness
- not the intentica of the Commission to that proposed i 2.744(c) did not provide determinations.One commenter adequate protection against undesirable suggested that persons having access be
{ place any restrictions on discovery byintervenors, or to write any special rules disclosure of physical security plans for subjected to the screening program I chilling intervenors' rights, such as a nuclear power plants. In his view a which the Commission has directed be protective order and afBoavit of established for power reactor personnel g
l s reening requirement not applicable toah parties. Not only would such rules be nondisclosure would not eliminate the Another commenter suggested that discrimmatory, but also would be nsk of unauthorized disclosure by-individuals be required to show contrary to sections 181 and 147a of the intervenors who had an ulterior motive sufficientevidence of trustworthiness i Act.This Co=nussion cannot presume of securing the plans for use in befon. being granted access.
sabotaging the plant.-This commenter Tb Deh's pode M '
( beforeht.nd that intervenors and their reccamended (i) inclusion of rules of matter has not changed. In the first ~
l counsel cre cny.the.less trustworthy decision based upon Diablo Cohyon for place, Section147 of tee Atomic Energy than the staff cr cpp!!cantand their counsel presiding officers to apply in hearings.
Act contains no provisions regarding j
The mird=um protection required for and (ii) secunty clearances or a trustworthiness determinations on a
Safegucids In.crmation is stated in screemng program for persons with hich to base a i ra!pe onneI access to Safeguards Information in N'"
' preposed i 73.21.ne requirements there apply to btervenors cnd their hean,ngs,in order to assure Section 145 for access to Restricted counsel as well as to the cpplicant or trustworthiness end re!Jability.Both of Data). Secondly, the Commission does,
licensee. Section 1744(e) allows a Board these recommendations have been n t believe that there is any reasonable to go further. if, in its Judgment after -
discussed above and rejected. In regulatory framework that can be used hearing all relevant arguments, the addition. the Commission does not to establish a licensee administered circumstcnces werrant it. His prepose to write rules affecting rights of screening program, considering the wide Ccemitrien needless to say, has intervenors in adjudicatory hearings distribution afforded some Safeguards confidence in the ability of its Boards to based upon a surpicion of ulterior Information.While the power reactor exercise sound judgment in the exercise motives in intervening.To do so would access authorization program mentioned cf their discrction under ! 1744(e), and be tantamount to writing rules based.
by one commenter might be used for therefore at iis time declines to write upon speculation rather than on fact and clearing licensee employees and other any special rules for the guidance of the law.The hetring process already persons granted unescorted access to Boards as to the extra measures they contains screens to separate the genuine the reactor facility,it would not be may require for the protection of intervenor from the spurious.%e app!Icable to engineering firm l
l Saferucids Infor=ction in adjudicatory intervenor must validate both his employees who are never on the site stcnding under Judicial rules and the (but who in some 7ses have total s
I L
ms.
merit of his contentions. He is a known. access to the physical protecticn rystem Wd. rcepc:t to the protective rn :=u used by the Sccide in the and readily identifiable person who design information). Thirdly.the Diabb Ccnven care end their potential openly pcrticipates at considerable Commission believes that the proper pcneral cpp'licability, the Ccemittien expense. Intervenors generally make no administration of the need-to-know effort to conceal their opposition to requirement combined with the rule's notes that these cenditions are involved nuclear power but this does not supply occupational restrictions will provide an in a review of the Disblo Canyon l
l hearing by an Atomic Safety and an adequate basis to consider them as effective information protection program I.icensing Appecl Bocrd.%e Appeal potential co-conspirators in plots to and still satisfy the minimum
- n_. hw inncd the Ccemist.icn that
- r.botege opereting power reactors.
restrictions" provisions of section 147a it e 'd : '. e to mke ecme sugrestiens [ In centrast to the chove, e third of the Act.
aprd=g the hcndiing cf Sciegi:ctds
, cc=menter stated thct proposed (3) Unrestricted Use of Information tn adjudicatory hearings but l 5 ::.744(e) was potentially too restrictive Telecommunicctions-Several t
Dicblo Ccnyen cAjudication is finished../ ofintervenors' rights in that it gave oo feels constrained not to do so until the much authority to the presiding officer.
restrictions on the use of telephone commenters suggested that the l
The co=menter suggested modification circuits for transmission of Safegucrds The Commission believes that the sug't usc!ulin determinine if restricticns ! of preposed I1744(a)to allowdisclosure of Information be deleted. Various recsens estions of the Appeal panel willbe cn intc-venefs rights of discovery of
' a party upcn a showing by the party of were given for this change. One mes
~-
redcral Register / Vol. 46. No. 204 / Thursday, October 22. 1981 / Rules and Regulations 51721 ccmmenter stated that the rule would Safeguards Information stored in ADP safeguards incident. ne Commission-prevent the licensee from calling for systems is more severe than with does not agree. Documents located help in a safeguards emergency.This is telephone usage. ADP systems located within alarm stations and guard houses not so since the regulations make an at engineering finns may have in need not be in locked security exception for extraordinary or rnemory large amounts of information on containers since they are under direct ernergency circumstances. Another the design of a physical security system.
control of security personnel. Similarly, comrnerter contended that the resources Without restrictions, access to such guard orders and procedures may be n;. J to intercept unsecured information potentially could be gained posted at access control points provided -
cen.munications exceeded the technical by anyone, authorized or not, who is that the post is continuously manned
%5i:. ties of the design basis threat.
familiar with the operation and has
,and the information irlocated so as to ne Cc= mission disagrees with this access to a terminal. Remote terminals prevent observation by visitors.
position and believes that relasvely could provide an especially easy and (6) Addition of Other Types of htilc skillis needed to tap phe e lines or unobtrusive means for obtaining Information--Several commenters cavesd:cp on radio conversations. A selected Safeguards Infonnation. Access disagreed with the deletion of generic third commenter noted that the to unprotected data lines between safeguards studies and reports (such as telephone is normally used to transmit facilities could also be used to the Sandia Laboratories
- Hondbooks on ship ing information and it would be ce= promise a physical security system.
Barrier Technolqy andEntry Centroi h :icnso=e to use unother method. In (5) PhysicolPrvicction
- Systems)from the scope of the rule end
/
dir rg.rd. the cdy shipments covered Aequirements-Several commenters noted that no justificction wcs given for by the final rule are spent fuel and stated that the storage requirements the omission. On this matter the.
formula quantities of strategic special were too restrictive. Suggested Commission note > that the original nuclear material. (Category L) alternatives (to locked-security storage legislative proposal prepared by the Notifications regarding spent fuel containers) included storage in desks.
NRC and interim versions of the shipments are required to be by mail file cabinets. locked rooms, legislation, contained explicit language
[See to CFR 73.72) except that reporting undesignated or non-CSA approved regarding the protection of " studies, schedule changes are permitted to be storage repositories, or anywhere in a reports, and analyses which made by phone in the form of time controlled access or protected area.ne concern the safeguarding of nuclear deviations frem the original schedule.
Commission does not. agree with the materials or facilities."1 This provision Infermation regarding Category I suggested altematives. The basic was deleted from the final version of shipments is clartified National Security objective of the secunty containeris.to section 147. In view of1his deliberate Infermetien under Pcrt 95 cnd use of make more difficult undiscovered action by the Cengress, the Commission unsecured te!cphone for such co= promise of Safegucrds Information.
has no choice but to delete these items infcenction is prohibited.
A steel filing cabinet secured with a from the rule.
Another co=menter stated that the locFing bar and a CSA epi roved One commenter suggested that i
rule crn'licts with the requirements of ccmbination lock. or a CSA approved information developed during the course'
[ 73.71 reprding the telephonic security containct both satisfy this
~
reper:ing of physical security events.
objective. On the other hand, locked file. of probabilistic rtk assessments be
~
protected i:nder this rule.The ne events fer which reportingis cabinets, desks, end ordinary doors can Com=fssion, while specing that such required are considered to be be entered with little difficulty and-information might have value to a ext cordinary conditions in themselves without leaving any indication that potential sabbteur.has concluded that end therefere exempt from the ecmpromise has occurred. ne objection on balance the public interest is better
- c:tr:ctions. An explicit stctement was to storing cnywhere in a controlled served if all safety-related studies are added to the rule in this regard.The access or protected area is based on the available for scrutiny.The question also Cornmirs!on, after ccreful consideration.
free access this would allow to anyone arises concerning the legality of ccr.c:udcd thct the restrictions on the in these areas. However, the rule has withholding information under Section use of un:ecured telecommunication.
been changed to delcte the requirement 147 that is neither related to a licensee's circuits needs to be retained in-the rule that the security storage container be in physical protection program nor to assure that Safeguards Information is a lockedroom when inside a controlled produced in respense to security net Int et compromised without the access or protected area-considerations.
J.rcOd;e of:hepman resporziblefor Other t c=menters objected to the (7) Deletions of Cce cin Types of v ~^ tre i.: no indicction recti tment for centrol cf Safegucids Information--One cc:.menter suggested ua.: tac : ratnctient vill undu!y Informr.t2cn by an individuel while in that it would be unlaveful to indude E r r. u Ece.u ee cr tb. NRC str.fi usc within c centrolled tecess or information rcrarding off. site response d.c N r w e !!conting m:.tter or protteted cret.The CcMrien egrees forces, shipment schedules and trcr. 7crt tetMtie For ext ople, that occe rt!cxetion is wctrcsted on locations of scfchevens in that these
- >c.m ic cdl. ins requirtd during
~ requirement has been left in the rde and forth in section 147.The Commission-this mctter; however, the bcsic items are not " security measures" as set shipmentictn be made using preertznged signals or an operating ruidance has been provided to indicate disapees on this point. NRC regulations cW that under cce.cin eenitient the general require licensees to mcke crranre=ents
-fr:sc.u cr %e of ADP con:rol exerc{std over cen rciled eccess Wth State or loed police fo ces'for
-- ?.=_: -.F r. : u t t d 'h t ie
( nu protec:ca i.n.c:. wcdc st.u:fy tne ressanse to safeguards emergencies. For rm.:ure of cn Y.DP system" was not req.urement, fixed sites these arrangements are clear that facil!!ies without on. site One com= enter noted that the documented and become part of the capabilities would be excessively requirements to keep Safeguards facility physical security plen. For burcer.td. and thr.t the rectn:tions Infctmation in locked security transport of spe*nt fuel and Category I shoub L: removed.The Commission containen wculd beve an adverse dnc;- eu nc, ting that the problem impact on the cveilability of the security
'cen e is.m.m m.
rcprr rc uncuicrl:d cecen to force to retpond to c threct er a twet.cr m. sr r.
Federal Register / Vol. 46. No. 204 / Thursday, October 22. 1981 / Rules cnd Regul:ti:ns 51722' quantitles of highly enriched uranium persons that receive Safeguards C.PetitionforRulemoking On June 7.1977, the Northern States Information.
Require records to be kept for any Power Company and Wisconsin Electric cnd plutonium.toute surveys are conducted by the NRC staffin order to Safeguards Information transmitted off-Power Company petitioned the Nuclear determine what police response cou!d Regulatory Commission to amend 10 be expected in an emergency, the site.
location of safe havens, and zones of Require that a list be kept of persons CFR 50.34(c) so as to include plant weak radio. telephone communications.
who have a need.to.know.
security information within the ne information Fathered is documented Note that distribution. reprmuction. -
definition of Restricted Data or cnd transmitted to the licensee for and destruction of Safeguards alternatively within the dermition of inclusion in his physical protection pinn. Information need not be documented.
National Security Information. to amend in this regard. the U.S. District Court for include a document exclusion list in 10 CFR 2.905 so as to atsure that discovery of plant security information the Distnct of Columbia has recently the rule.
Add attorneys to the occupationlist is subject to the protections of Subpart I upheld the Commission's position that contained in i 73.21(c); (not necessary in to lo CFR Part 2. to amend Subpart I to police response capabilities and that attorneys are.already included in to CFR Part 2 to explicitly recognize that telephone shortcomings are legitimate Its protections extend to information not items for withholding under section 147 (c)(i) and (vi)).
Amend the definition of Safeguards under Commission control, and to delete of the Act.8 Ancther commenter stated that it Information to add " controlled" before to CFR 2.790(d)(1).ne Commission's decision on the petition,in light of the mqht bc !=p'stible to prevent Safeguards Information.
dnclosure of certaininformation Add a definition for " composite plan."
issuance of this rule, will be set forth in 1.imit withholding of information on a separate Federal Register Notice.
reccrding local police forces.De Commission egrees in part and the rule security system weaknesses to those D. Effective Dates ne Commission has decided te make has been modified to more accurately items severe in nature.
teflect the originalintent that only (11) Commenis Regarding Guidance-
!i 2.744(e). 2.790(d)(1) 73.201) and (11),
details of the forces committedto A number of comments were received and 73.21(a), (b) and (c)(1) effective inpond to a facility safeguards regarding guidance needed to implement ' immediately for good cause pursuant to emergency need be protected.
the rule.The specific items mentioned the exception provided by 5 U.S.C.
(8) IPithholding Spent fuelRoute by commenters were.taken into S53(d)(3).The enumerated sections Infer =ctien-Two commenters consideration during the development of define the scope of Safeguards Information protected.by the rules, recommended that routes used for spent the guldence document.
fucl shipments be withheld until the (12) Cost-Several commenters stated identify those persons who are shipments have been completed.This is that the estimated costs for permitted access, set forth certain not a matter for Commission implementing the rule were too low, protections afforded by the Commission to such information, and provide certain deliberstien. Section 147 contains an particulerly in regards to storage during.protections for physical prote er.7'icit statement that "Nething in this the construction phase, protection at
/sct r hall cuthcrire the Co= mission to licensee contractor facilities, and material control and accounting prohibit the public disclosure of recurring labor.The Commission has information not otherwise designated as informetion pcrtcining to the routes and revised its estimates as follows. (A Safeguards Information or classified as gantities of shh ents of irradiated value-impact cnalyses is available in the National Security Information or nucler.r reactor fuel."
Public Document Room.)
Restricted Data.These sections alone (9) Limit Re;uictions to Parts 2 and impose no new requirements on l
n==o W licensees or other persons outside the s--One ccmmenter suggested that the eu agency.
licensed industry be allowed to devise u--.mm-se co-o-cas mi immediate effectiveness of these in ewn rnethods of protection. that rpt cific requirements be deleted from sg sq g,Qw=. sections is warranted to avoid further
==
delay in implementing the Congressional Pr.rt 73. and that Pcrts : an;! 9 contam wse w ssn.cao s= c - -= sos =>
intent in enacting Section 147 of the directives that Safeguards Information Act to provide protection Atomic Energy' closure for certain w sa. coo _
w s m ooo be protected. As is stated elsewhere, the from public dis l
Commission believes that without f
t!:equ:rements (which are (13) Public Announcement-One specified types of Safeguards Information. Since the rule also codifies
=:. y :c the m"umum commenter noted that sc=e firms who current Commission procedure as to v.a.:nr inat provide en cccepteble my have Safeguards Information are
- b. ! cf grott:enj inere womd be n not part of an information network that what types ofinformation cre protected.
n m urance of u ufermity er consistency.
would inferm them of the existence of immediate effectiveness of those provisions willnot adversely affect Ccmn.cnts retth cd indicate there is n this new rule.The Commission agrees Commission licensees or others in gt neral t;n cment in the licensed that special effort is needed regarding Possession of Safeguards Informatio'n.
mdustry conecming what constitutes a public dist,emination of the rule. In The remaining provisions of the rule minimum level of grotectio,n.
addition to the normal practice of will be effective on January :0.1981.
< - & me-r elbwm.g is a pu heatien in the Tcdcrcl Pepirter and
' r" c := tn cn minor mat,ters dis:-ibutien oi NEC public E.Peperwork Reduction Stctemen:
,o
- . ue nct m:c7 ::c c c mic the.. al crmounccments the Cc=minien intends There ere no repo-tinF or rute on the basis cf no c;emonstratab,eto (i) encourage licensees to notify their recordkeeping requirements contained t
need or benefit-contractors, suppliers, and local pohce in this regulation and therefere it ie no't Show that inc !!censees are not response forces. (iil send out a special subject to Office of Management and re:r en:!bic fcr compliance by other mailing to nuclear service fir ns that do Budget clecrance as regmred by Puh. L 96-511.
businers with power reactor heensees, e promult on o ese i n.re,.: s -.,.-r astu u 13.0 cmi ^cnor.
and (iii) mvite certain associations to amendments would not result in any
.c : -r-ie.r. :s. ic 1 tr-s ur J ece, notify their members, 3
... m l
Federal Regist:r / Vcl. 40. No. 204 / Thursdry, Oct:ber 22. 1981 / Rules cnd Reguhthns 5177.3 activity that afrects the environment.
received and possessed by a party other USC 2:01(o)) and the La ws referred to in Accordingly, the Commission has than the Commission staff. It shall also Appendicas.
be protected according to the
- 5. Section 50.34 is amended by adding determined under the National Environmental Quality guidelines and requirements of i 73.21 cithis chapter.% a new paragraph (e) to read as follows:
the enteria of to CFR 51.5(d) that neither The presiding officer may also prescribe Contents of applications; technical an environmentalimpact statement nor such additional procedures as wil]
$ 50.34 cnvironmentalimpact appraisal to effectively safeguard and prevent intonnaton.,
~
7purt e nt ;athe ded. ration for the disclosure of Safeguards Information to
- pased amendments to Title to is unauthorized persons with minimum (e) Each applicant for a license to 3
impairment of the procedural rights operate a production or utilization ecuired Pursuant to the Atomic Energy Act of which would be available if Safeguards facility,who prepares a physical IcM. as amended. the Energy Information were not involved.In security plan a safeguards contingency.
Ecorpni:ation Act of1974, as amended oddjtion to any other sanction that may plan, or a guard qualification and 4.nd scetions 5:2 and 553 of Title 5 of the be imposed by the presiding officer for training plan. shall protect the plans and United States Code, the following violation of an order issued pursuant to other related Safeguards Information against unauthorized disclosure in amendments to Title 10. Chapter 1. Code this paragraph violation of an order '
ef Federal Repulations. Parts 2. 50. 70.
pertaining to the disdosure of accordance with the requirements of cnd L cre pubMshed as a document Safeguards Information protected from i 73.1 of this c.hapter, as appropriate.
Sct to ccihetion.
disclosure under section 147 of the
- 6. Section 50.54 is amended by adding Atomic Energy Act. es amended. may be a new paragraph (v) to read as fo!!ows:
PART 2-RULES OF PRACTICE FOR subject to a civil penalty imposed CCL*.ESTIC LIOEf E !iG PROCEEDINGS pursuant to i 2.205.For the purpose of f 50.54 Conditions of licenses.
imposing the criminal penalties
- 1. The authority citation for Part 2 is contained in section ::3 of the Atomic (v) Each licensee subject to the revited to reed as follows:
Energy Act, as amended, any order requirements of Part 73 of this chapter Autbecity Seca. utp and tat. Pub.L c3-Issued pursuant to ;his paragraph with shall ensure that physical security, respect to Safeguards Information shall safeguards contingency and guard 1)$ec. k.
be deemed an order issued under qualiScation and training p!ans r.nd ende Pu e-d e25. 70 Sta t. 4m (c U.S.C ru): sec. :ct, a.:
section1G1b of the Atomic Energy Act.
other related Safeguards Information are u.endei Pub. L S3-4m u Stat.1:4 (4:
protected against unauthorized U.S C W1)(5 U.S C 552), urJess otherwise disdosure lit accordince with the retei S?c* ins 2003-2.205 elso istued under
- 3. Section 2.793 is amended by Sec. na Fab. L ra.rc3. ca Stat. 9'.5 (c U.S.C revising para;;raph (d)(1) as follows:
requirements of i 73.21 of this chapter.
- =0) and rec. 00. Pab. L 9M35. es Stat.
as appropriate.
1:e !C USC SW). Seetices
- E3}.1En3 f 1.790 Put4c lacpcctions, exemptfone, 4 o p r;t d under 5 USC :53. See: ion : tm requeets for v.tthholding.
PART 70-DOMESTIC LICENSING OF SPECIA!. NUCLEAR I.'.ATERIAL i.o m.ad u. der s U.S C 5:3 and sec. :3. as s a r.f ci P.:b. L r4-LS,72 Stat.
- 9. end
- 7. The authority citation for Part 70 is M L rs-::n. n Stat.1<83 (c USC. ::o 9).
( ) Correspondence t.nd reports to or revised to read as follows:
- 2. Ecctio t :J44 is amendt:d by addinS from the NRC which cenicin infonnation a new paragreph i 2.744(e) to read as or records concerning a licensee's or Autho:itp Sees. 51. 53, tet, t e:.183. 68 Stat.9:2.930. as amended.948 as amended.
f&ws:
app!! cant's physical p otection or 953, as amended.954 (c USC :071.20'3, tnetcrid control and accounting program
-~4*
N rti:,a of I;P.0 r< core nd
=31. 23. =33): Sees. =.:95. 83 Stat.1:44.
$c'uEtnts, for spccial nudeat material not 1246 (c USC W. W6) udess othm otherwise designated as Sefeguards Infermation or class!fied as National
" [*d-, the peposes of se sa Stat. s5a. as (c)In the case of requested documents Secdy Information or Restricted Data.
amended (c USC =73), il 733.70.ts c).
U.d records (induding Safc5uards 7021(c) 7022 (al(b) (dMk), m:4 (a) and Information referred to in sections 147 (b). 70.34s) (3). (5). and (1). 70x 7029 (b) cad 182 cf the AtomicEnergy Act as PART 50-LICENSil;G OF and (c). mu(a). mc(s) ar.d (c). mse, are cmer.ded) exc*npt from disclosure under PRODUF~iOil AI:D UTILIZATION issued under sec. telb. es Stat. 948. as amended (42 USC. =01(b)): il m:ca(dL i 03D. but where c'itdesure is found by FACILITIES m34a)(6). (c). (d). (el e.r d (s). 70% 70 :t(c)-
. :. - m:tr to be necessary to a
- < r d. cir.cn in de po
- :eeding, anY
(. The cudority citation for Part 50 is (g). 73.58, ms,(b) and (dl. ro.5s:aHER3) and
<< %P u cative Directcr for revistd to read 14 fclicwr.:
(hHf) cn (seued under s ec. tet. m Str.t. M9.
as a= ended (c USC. ::0t[i)). and U; n,&r to prod 0cc 60 documen! or gg 3.,
i170.34b). 70.st(b) and (i). ru. ms3. 7034.
r ercr (cr cny cier order 1: sued u Stat. p.s n s n s' s u as A
d 7053 #U28E8)I43 Ill' d III 7358 "l""'u o:de en; p: educt.cn of the document or-
=23,: sat Seca. :st. = :o: r4 Stat. u43.
U# '#1I*II-amended (c USC ass, n3<. =ct. ::32,
""d"',ec.1eto. u Stat. 9 3. as amended (
tecords) may cc: tein such protective lern.s and conditions (induding u44 n43 (c USC 5841. Lcc. 584e). urJesa
" hts of ner. 6r c%sure) s.s rany be carrwin coni Sec: ion 50:f, uso issued
- 8. Section 70. :Is e_. ended by edding
..e s3at. nd c3 c%cte to 'i:c.it de ecer Sec. 20. 4 Stat. g (C U.S.C. :n:1 a new parngraph @ titer per%ryh 04 L r? E f#-5' C1 m it! :ed under Sec.
to rced as fcilews.
-.. t ;.m:0.r. the..rc:a dL ;.
I R R Stet G " 'rEndei lu U S C a mterc ted Sutes and other
- >4). Sections suo3-Oc 10: Lasaed under 5 70.22 Contents of eppHeations.,
Fournmental entities participating sa. u U
sporde putzu..nt te t 2. n(c) and to their g_
(1) Each applicant for a license to cudif.ed ytitne:t: r.nd counsel...~ hen amended:(4:USC =72), t 50.54!!)lasued Sa!que:,t Ir.f.::rati:n protected from under ser tett c: Stat. w'. (c USC.
pocsess, use. trtnsport. or deliver to r.
6:clotu t under :.ction 147 of the
= t(ijl. !g n 15371, a.nd 50.78 issued carriet for transport formula qucntities Ah.ic F.rtry /.ct. P.! cmended. i?
under Sec.1c.o. ta Str.t.CO. as amendet JC of strategic specici nudeer material.
51h24 Federal Register / Vol. 46. No. 204 / Thursday. October 22, 1981 / Rules and Regulations who prepares a physical security.
1 73.2 Deftnttlona.
operate a nuclear' power reactor. or.[3)-
transports, or delivers to a carrier for safeguards contingency, or guard quahfication and training plan shall Uj)" Safeguards Information" means transport, a formula quantity of strategic protect these plans and other related information not otherwise classified as special nuclear material or more than.
Safeguards Information against National Security Information or.
100 grams of irradiated reactor fuel, and unauthorized disclosuri,in accordance Restricted Data which specifically each person who produces. receives, or with de rcquirements of 5 73.21 of this identifies a licensee's or applicant's acquires Safeguards Information shall chapter.
detailed. (1) security measures for the ensure that Safeguards Information is
- 9. Seetien 70.32 is amended by adding physical protection of special nuclear protected against unauthorized a new parag aph 0) to read as follows:
material, or (2) security measures for the disclosure. To meet this general physical protection and location of performance requirement. licensees and I 70.32 CondWons of Deense(
certain plant equipment vital to the persons subject to this section shall safety of production or utilization establish and maintain an information
[j) Each licensee who possesses a
- facilities.
protection system that includes the (u)"Need to measures specifled in paragraphs (b) formula quantity of strategic special determination bknow" means ay a person having through(i)of this section.Information nuclear material. or who transports, or delivers to a crstrier ic; transport, a responsibility for protecting Safeguards protection procedures employed by fx=ula quantity of strategic special Inicrmation that a proposed recipient's State and local police forces are deemed nudtr.: materid or mere than 103 g a=s access to Scieguards Infctmation is to meet these requirements.
of irradiated reactor fuel shall ensure necessary in the performance of official.
(b)lnformation to beprotected.The thct phytical security, safeguards contractual, or licensee duties of specific types ofinformation, contingency, and guard qualification employment.
documents, end reports that shall be end training plans and other related (u)" Person"means (1) any protected are as fcilows:
individual, corporation partnershi Safegucrds Information are protected firm. association, trust, estate, pubg.
(1) Physicc1 Protection of fixedSites.
against unauthorized disclosure in c or Information not otherwise classified as.
secordcnce with the requirements of private institution. group. government Restricted Data or National Sec6rity i 73.21 cf this chepter.
agency other than the Commission or Information relating to the protection of' the Department of Energy (DOE),
PART 73-FHYSICA1. PROTECT 10li OF (except that the DOE shall be.
acilities that possess formula quantities f strategic special. nuclear material, and PLAliTS AND f.'.ATEP.lALS censidere.d a person to the extent that power reactors. Specifically: (i) The its facilites are sublect to &e D' censing composite physical security plan for the 10.The authority citation for Part 73 is and related regulatory authority of the nuclear facility or site.
revised to read as foUows:
Co= mission pursuant to section 202 of (ii) Site epecific drawings, djagrams.
Authents Sees. 53.147.161b.181L telo, the Energy Reorganization Act of1974 sketches, or maps that substantially Pub. L ti-7c3. to Str t. c30. M S-G50, a s and sections 100105 and 202 of the
~
Urcrdum MiD Tailings Rsdiation Control repret t the fmal des ectures of the
. S.a T
. t.s t.
5 Aet of 2978), any state or political py p
y
- m. :st.7); se: :O Pub. L 93435, t.S Stat.
subdivision of a state, or cny pohtica}
(iii) Details of alarm system layouts Pub. L V -:55. M Stet. 7s3. (42 U.S.C 0373.
1:c.1:43. as amended. Pub. L M-79 c9 Stat.
subdivision of any government or showing location of intrus,on detecton i
413 [42 U.S4 5t>tt). For theIu. posts of occ-nation, or other entityt and (2) any lega}
devices, alarm assessment equipment.
- 23. c.3 Stat. css, as amende c U.S.C 273 successor, representative agent, or alarm system wiring, emergency power sources, and deress alarms.
I r3.55 is isrued under sec.1cib. tt Stat. Ns.
agency of the foregoing (mm)" Security Storage Container" (iv) Written physical security orders Includes any of the following -
and procedures for members of the 7
73 : 7 7
.40 4
48.
73.53. 73.15. and 73 er are issued under sec.
lett. 68 5 tat. M9. a a ame::ded. 42 U.S.C repositories:(1) For storage in a building security organt:ation. dcress codes. and
- 2010); sad i17320lc]O). 73.24{b)D).
located within a protected or controUed patrol echedales.
7320(b)(3), (b)(e). [i){B). and (1){4). 7327 (a)
' access area, a steel filing cabinet (v) Details of the on-site and off. site and (b). 73.40(b) and (d). 73.46(g)(6). and equipped with a steellocking bar and a communicatione systems that are used
[h)::1. 3M;M:1. !3HiiiXB) and (h).
three position, changeable combination, for security purposes.
E
- ,'"hbO.$".T2,$'t, GSA approved padlock
- (2) A security (vi) Lock combinations cnd o
30,
- f. ling c:bmet thct betts a Test mechenical key design.
u.[mcr E c U I C ::O(o).
Certficat:en Lcbel on the side of the (vii) Documents and other matter that
- n. E t = = 72 i: cmen:,.cd by ac,_,mg locking drcwer. or interior plate, and is contain lists or locations of certain.
a new pc_rg:ph (b)[7] to read as marked. " General Services safety-related equipment explicity foUcws:
Ar'*istrction Approved Security identified in the documents as vital for Contciner" on the exterior of the top purposes of physical protection, as
{ 73.1 Purpose rnd t cope.
drawer or door:(3) A bank safe-deposit contained in physical security plans, box: and (4) Other repositories which in safeguards contingency plans, or plant g,,,
6e Qcment cf 6e MC. would specific safcp:trds tnelyses fer (7) *J :/m.r: pra =bes rc:;u! c=ents previce comparable physical protect,on.
production or utili:stion facilities,
....,...aer te 13 i..-
inic.hid$Ur'.5.'e5En'dsbc7:
- new { 72.01 i: cdded to recd as (vi i) Tne composite safegucids cny perscn.
f U *8 whether or not a li:ensee of the contingency plan for the facility or site.
Commission, who produces, receives, or f 73.21 Requiremente tor the protection of (ix)Those portions of the facility ecquires Safeguards Information.
esteguerce Inf orm: tion.
guard qualification and training plan (a) Gene:cipe:lor: nonce requirement which disclose features of the physical
- 12. Se:tien 73.2 is cmended by adding Each licensee who (1) possesses a security system er response procedures.
new p rtp ;t: Uj). [hk),(U) and (mm) fc =ula cuantity of strategic special (x) Response plcns to spccific threats to rccd cs foUcws:
nut!ect material, or (2)is authorized to detailing size, disposition. response
]
F:d;ral R:gister / Vcl. 48. N:. 204 / Thursday, Oct ber 22. 1981 / Rul;s cnd Regulati:ns 51725 times and armament of responding Commission, or the United States be destroyed by any method that forces.
Government:
assures complete destruction of the (xi) Size. armament, and disposition of
[il) A member of a duly authorized Safeguards lnformation they contain.
on. site reserve forces.
commmittee of the Congresst (g)Externaltmnsmission of (xii) Size. Identity. armament, and (iii)"Ihe Governor of a Stste or documents andmaterial. (1) Documents arrival times of off. site forces committed designated representatives:
or other matter containing Safeguards to respond to safeguards emergencies.
(iv) A representative of the Information, when transmitted outalde
(:) Thesico/protecticn in imns!L International Atomic Energy Agency an authorized place of use or storege.
Infcrmation not otherwise classified as
. (IAEA) engaged in activities associated shall be packaged to produde disclosure Restricted Data or National Security.
with the U.S./IAEA Safeguards of the presence of protected information.
Information relative to the protection of mfat who has been certified by (2) Safeguards Information may be,
thipments ofiormula qucatities of (v) A member of a state orloEllaw transported by messenger-courier, strategic special nuclear material and enforcement authodty that is United States first class, registered.
s pent fuel. Specifica!!y:(1) The res'ponsible for responding to requests express, or certified mail, or by any' composite transportation physical.
for assistance during safeguards individual authorized access pursuant to security plan.
! 73.21(c)
(ii) Schgules and Itineraries for
'j'g g dual to whom disclosure (3) Except under emergency or tp:;c;..c s.pments. (Routes and cuantitles for shipments of'rpent fuel is ordered pursuant to l 2.744(e) of this extraordinary conditions. Safeguards chapter. Informct'on shall be trcnsmitted only by are not withheld from pub!!c disdosure. (2) Except as the Co$ mission may protected teltcommunications circuits Schedules for spent fuel sh2pments may otherwise authorize no person may (including feccimile) epproved by the be released 10 days after,the last disdose Safeguards Information to any NRC. Physical security events required shipnient of a current senes.) other person except as set forth in~ considered to be extraordinary
- to be reported punuant to ( 73.f1 are (iii) Details of vehicle immobilization paragraph (c)(1) of this section.
features, intrusion alarm devices, and (d) Pmtection while in use or storoga. conditions. C (1) While in use, matter containing (h) Use ofoutomatic datopmcessing - IIr Eene t ith and Safeguards Information shall be under ADPJ systems. Safeguards Informaticd the control of an authodzed individual ' (may be Processed or capabilities of local poh.ce response forces, cnd locations of safe havens. (2) While unattended. Safeguards nsee}s or P ~' (v) Details regarding limitations of Information shall be stored in a locked g(' tai ed thc li radio-telephone communications. security storage container. V.nowledge his contractor's facility r.d requires the ' (vi) Procedures for response to of lock combinations protecting use'of an entry code fu access to stored scfcguards emergencies. Safegucrds Information shall be limited information. Other systems may be used (3) Inspections. cudits cad to a mimmum number of personnel for if 8PProved fo security by the NRC.. c raiucticns, Infor=ction not otherwis e operating purposes who heve a "need to Infamotw,m/fmm Sefeguards (i) Rem clas:ified as National Security know" cnd are othendse authorized n categem Documents Information or Restricted Data relating necess to Safeguards Information in to safeguards inspections andreports. cecordance with the provitions of this riginclly containing Sefegucids Spec: fica!!y: section. Inf rmation shcIl be removed imm the (i) Portions of safeguards inspection (e)Prepamtion cadmcrking of Safeguards Info =ction category rc;' arts, evduations, audits, or documents. Each docu=ent or other whenever the informction no longer invertptiens that contain details of a matter thct contcins Safegucrds meets the criterir. contained in this section. licensee's or applicant's physical Information as deEned in pcragraph (b) security system or that disclose in this section shall be marked
- 14. Section 73.80 is revised to read as un:cm:ted defects, weaknesses, or "Scfegucids Information"in a follows:
vdnerabilities in the system. conspicuous mennor to indicate tne WO l Information regarding defects, presence of protected information weaknesses or vulnerabilitics may be (portion marking is not required for the An injunction or other court order releasts after corrections have been specific items et information set forth in may be obtained proh! biting eny l l rnde. Ec pcrts of inver.tigc tions may be perapaph ! 73.21(b) other than guard violation of cny provision of the Atom!c l r&rt i:!:ct the invcrtipcticn her been c;uclincet!cn and t cini.g p!:ns end Energy Act of IrM. t: e: rended. ci rny c.c.,6ctei t.n! css withheld purtur.nt to correrpendence to end from the NRC). regulation or crder issued thereunder. A W rr cu'.}cnties, c.p., the Frc:do= of Domunentr cnd other =ctice contcining court order mcy be chtn!ned fer the Irlo=:t!an Act (5 U.S.C. 5;:). Scfeptrd:Infor=r. tion in the hcnds of peyment of c civil pent!!y impond (4) Ccrrespondence. Pcrtions of. contrectors cnd crents oflicenseec that purcuant to section :.v. of the Act for cone:pe::dence insofar at they centtin were produced more than one yect prior violation of section 53,57. 62. C3. 81. C2. I Safeguards Information cpecifically to the effective date of thic r.mendment 101.103.104.107.103. or 147 of the Act. defined in parcgraphs (b)(1) through need not be marked unless they are or scetion 205 of the Energy ~ (b)p) of this parepaph. removed f em stcrcre cc:: tainers for Keorgrnizatien Act of1974, or any ra!e. ~ W A::c.: to S:l*c;.wids Infc:=:t;:n. u s e. replction. or 0-der istued thertunder. * :;; ts th: Ccmm'ulcn :nty i.G l'cpred::::!:n cnd dcst.~x! ion of cr cny tc:m. censiticn. cr liniu. tic: c! c2.tnor e authenre, no penon may matter ex.tcir:ing Sofegucids any license issued thereunder, or for any have access to Safeguards Information Information.,(1) Safeguard Information. violation for which a license may be unless the person has an established may be rep.oduced to the eum revoked under section 1cs of the Act. "need to know" for the information and extent necessary consistent with need Any persen who willfully violates cny is: without permissica of the originator. provision of the Act or any regulatian or (i) An employee egent, or contractor (2) Document or other matter ordu issued thereunder may be gui!ry cf l of an epplicant, c licentec. the cont:ini::p Sc!cr.:ctd: IrJermctier: mey c crime end.upon conviction. rncy be 1 1
22, 1961 / Rules and Regulatisas Federal Register / Vol. 46. No. 204 / nursday. October 51726 punished by fine orImprisonment or both, as provided by law. Deted at Washington. D.C. this 19th day of October.1981. For the U.S. Nuclear Regulatory Commission. Samuell. Chek, 4 Se:retory of the Cem:nission. irn ow. n-ux nw m.a m I EJt1J4 CODE 75t>4H8 l
- e e
l l l I l ~~ - ___.g. -e.-c y m w gg3 +
armiamesu 4 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD Richard S. Salzman, Chairman Dr. W. Paed Johnson Thomas S. Moore ) In the Matter of ) ) PACIFIC GAS AND ELECTRIC COMPANY ) Docket Nos. 50-275 OL ) 50-32o OL (Diablo Canyon Nuclear Power Plant,) Units 1 and 2) ) ) PROTECTIVE ORDER ON SECURITY PLAN INFORMATION Counsel and witnesses for Intervenor San Luis Obispo Mothers for Peace (Intervonor) who have executed an Affidavit of Non-Disclosure, in the form attached, shall be permitted'
- /
access to " protected information"-- upon the following condi-tions: 1. Only Intervenor's counsel and Intervenor's experts who have been qualified in accordance with the requirements of our decision in Pacific Gas & Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-410, 5 NRC 1398 (1977),and our Order of Febtrary 25, 1980 in this pro-ceeding, may have access to nr3teited information on a "need to know" basis.
- /
As used in this order, " protected information" has the same meaning as used in the Affidavit of Non-Disclosure, annexed hereto. d '{ h)
2. Counsel and experts who receive any protected infor-mation (including transcripts of in camera hearings, filed testimony or any other document that reveals protected infor-mation) shall maintain its confidentiality as required by the annexed Affidavit of Non-Disclosure, the terms of which are hereby incorporated into this protective order. 3. Counsel and experts who receive any protective infor-mation shall use it solely for the purpose of participation in matters directly pertaining to this security plan hearing and any further proceedings in this case directly involving security matters, and for no othe~r purposes. 4. Counsel and experts shall keep a record of all pro-- tected information in their possession and shall account for r,d deliver that information to the Commission official desig-nated by this Board in accordance with the Affidavit of Non-Disclosure that they have executed. 5. In addition to the requirements specified in the Affidavit of Non-Disclosure, all papers filed in this pro-ceeding (including testimony) that contain any protected information shall be segregated and: (a) served on lead counsel and the members of this Board only; (b) served in a heavy, opaque inner envelope bearing the name of the addressee and the statement " PRIVATE.
l TO BE OPENED BY ADDRESSEE ONLY." Addressees shall take all necessary precautions to en-sure that they alone will open envelopes so marked. 6. Counsel, experts or any other individual who has rea-son to suspect that documents containing protected information may have been lost or misplaced (for example, because an ex-pected paper has not been received) or that protected informa-tion has otherwise become available to unauthorized persons shall notify this Board promptly of those suspicions and 'the reasons for them. It is so ORDERED. FOR THE APPEAL BOARD ? ft ,/ggl Richard /S ' Sal Chairman Done at San Luis Obispo, California, this 3rd day of April, 1980. I I l
UNITED STATES @F AMERICA t NUCLEAR RECULATORY COMMISSION ATOMIC SAFETl AND LICENSING APPEAL BOARD ) In the Matter of ) ) PACIFIC GAS AND ELECTRIC COMPANY ) Docket Nos. 50-275 OL ) 50-323 OL (Diablo Canyon Nuclear Power Plant,) Units 1 and 2) ) e ) AFFIDAVIT OF NON-D IS CL O S URE I, , being duly sworn, state: 1. As used in this Affidavit of Non-Disclosure, (a) " Protected information" is (1-) any form of the physical security ~ plan'for the licensee's Diablo canyon Nuclear Power Plant, Units 1 and 2; or (2) any information dealing with or describing details of that plan. (b) An " authorized person" is (1) an employee of the Nuclear Regula-tory Commission entitled to access to protected information; (2) a person who, at the invitation of the Atomic Safety and Licensing Appeal Board (" Appeal Board"), has executed a copy of this affidavit; or (3) a person employed by Pacific Gas and Electric Company, the licensee, and authorized by it in accordance with Commission regula-tions to have access to protected information. 2. I shall not disclose protected information to anyone except an authorized person, unless that information has previously been disclosed in the.public record of this proceeding. I will safeguard protected
O -2_ information in written form (including any portions of transcripts of in camera hearings, filed testimony or any other documents that contain such information), so that it remains at all times under the control of an authorized person and is not disclosed to anyone else. 3. I will not reproduce any protected information by any means without the Appeal Board's express approval or direction. So long I possess protected information, I shall continue to take these as precautions until further order of the Appeal Board. 4. I shall similarly safeguard and hold in confidence any data, notes, or copies of protected information and all other papers which contain any procected information by means of the following: (a) my use of the protected information will be 'made at a facility in San Francisco to be made available by Pac,1fic Gas and Electric Company. (b) 1 vill keep and safeguard all such material in a safe to be ob'tained by intervenors at Pacific Gas and Electric Company's expense, af ter consultation with Pacific Cas and Electric Company and to be located at all times at the above designated location. (c) Any secretarial work performed at my request or under my supervision I will be performed at the above location by one secretary of intervenor's I designation. Intervenors shall furnish Pacific Gas and Electric Company, i the Board and Staff an appropriate resume of the secretary's background and experience. (d) Necessary typing and reproduction equipment will be furnished i l by Pacific Gas and Electric Company. 1 (e) All intervenor mailings involving protected information shall t be made from the facility furnished by Pacific Gas and Electric Co. ~
( 5. If I prepare papers containing protected information in order to participate in further proceedings in this case, I will assure that any l secretary or other individual who must receive protectsd information in I order to help me prepare those papers has executed an affidavit like this one and has agreed to abide by its terms. Copies of any such af fidavit will be filed with the Appeal Board before I reveal any protected information to any such person. 6. I shall use protected information only for the purpose of preparation for this proceeding or any further proceedings in this case dealing with security plan issues, and for no other purpose. 7. I shall keep a record of all protected information in my possession, including any copies of that information sade by or for me. At the ~ conclusion of this proceeding, I shall account to the Appeal Board or to a Commission employee designated by that Board for all the papers or other materials containing protected information in my possession and deliver them as provided herein. When.I have finished using the protected information they contain, but in no event later than the conclus ion of this proceeding, I shall deliver those papers and materials to the Appeal Board (or to a Commission employee designated by the Board), together with all notes and data which contain protected information for safekeeping during the lifetime of the plant. 8. I make this agreement with the following understandings: (a) I do not waive any objections that any other person may have to executing an affidavit such as this one; (b) I will not publicly discuss or disclose any protected information that I receive by any means whatever.
( Subscribed and sworn to before me this day of April, 1980 9 8 e em m 9 O 5
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~ M e I i Cite as 11 NRC 775 (1980) CLI-80-24 g-m,_ a _ E.E -A _ qqw.e-u.cy..txqwqm UNITED STATES OF AMERICA @jl&W NJgi$ M M NUCLEAR REGULATORY COMMISSION ~eg3mg-v m,,g,,rg -g, %. W?b6WpW;-lWrA. __ - - y was u t.M-r ' y ~' ~- ~ ^~ ~ *:? -As e51itilb.1~ &isa%2& COMMISSIONERS h wa.n.%21*"2:&.M --- g John F. Ahearne, Chairman g ygn,r.&gy, v.. Victor Gilinsky ... t j; 6 - f.-
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Joseph M. Hendrie .C"1 ef-j m.% %w 'O I l Peter A. Bradford i9"'.^:"-? i p #++Teswi.::::f.W25Fe in the Matter of Docket No. 50-275 OL kh 50-323 OL !q - gy-jh It 515G& M bi 1 PACIFIC GAS AND ELECTRIC , MSS'f-~.- - Ex h COMPANY ~ (Diablo Canyon Nuclear Power June 11,1980 P!:mt, Unit Nos.1 and 2) Acting upon petitions to review ALAB-592 filed by a'pplicant and intervenor, the Commission upholds that part of ALAB-592 requiring Giat the secunty plan be made available (under a protective order) to ~' inten enors counsel and expert witness; rules that a protective order issued by a board may not constitutionally limit public disclosure ofinformation i obtained outside the hearing process; and remands the matter to the Appeal Baard for decision as to which of two specified procedures should apply to the disclosure of such outside information. m,, p h W ecir 6. N RELES OF PRACTICE: SECURITY PLANS . M k%W The adequacy of a nuclear facility's physical security plan may be a proper subject for challence by intervenors in an operating license ~ s.
- rdce.img. Comolidaicd Eb3on Company of New l'ork (Indian Point IU g-
- 6. 1 Station, Unit 2). 7 AEC 947,949 (1974). Commission regulations contemp-late that sensitive information may be turned over to intervenors in the proceeding under appropriate protective orders.10 CFR 2.790.
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v e ,,...%..E U.G.;L7isqgm ~;g g m m w w= r e m or - m _ - _ -. t4 ? l s j WCd"E 3 stay of the Board's order the Board's decision. Interve RULES OF PRACTICE: SECURITV PLANS I' Eosed amdavit of non-di In determining whether, and under what conditions, security plans nia) In"enor Sled pleadings opposing P o Posing intervenor's motions; be made available to intervenors, boards are to follow the guidelines se: i forth in ALAlb410(5 NRC 1398) and ALAB-592(II NRC744). { ~',,' e t[e requests of both PG&E and th [,w 2ommission has re ( RULES OF PRACFICE: PROTECTIVE ORDERS ' $mienenor. Because th Protective orders may not constitutionally preclude public dissemination of information which is obtained outside of the hearing process. See ( ' . mission will not rule upon them. Rodgces v. United Starcs Stcct Corporation, 536 F.2d 1001,1007 (3rd Cir. [ in its petition for review PG&E arg '. :Id not be made availa 1976n Inicrnational Products Corporation v. Koom, 32s F.2d 403,408 (2d ; Cir.1963); and In Rc Halkin, 598 F.2d 176,195, n. 45 (D.C. Cir.1979). r .i.Me io the fewest number of in ~ Rl'LES OF PRACflCE: PROTECTIVE ORDERS emies PG&E's concern, but emphasiz , ' receedines may raise contentions rel. A person subject to a protective order is prohibited from using protected ?..a[ ant's proposed physical security ar: ~ information gained through the hearing process to corroborate the accuracy [ c,$ mission's regulati or inaccuracy of outside information. Moreover, the Commission discour. $ ermation may be turned over to In this pro ~ '.repriate protective orders ages parucipants in Commission proceedings from gathering protected i information from independent means and publicly disseminating such ; 11.1980 (ALAB-592), has sel uder of April inf rmation' ader what conditions physical secunty pl u.tenenors. The Commission has MEMORANDUM AND ORDER j esception noted below endorses the g On April 11. 1980, the, Appeal Board issued a Second PrehearinS i ivard. We believe that the Board ha Conference Order (ALAB-592) directing that representatives ofintervenor' nterpreting the. law and balancing compi San Luis Obispo Mothers for Peace, be provided access to a sanitized l h.mdled the sensitive issues raised by req sersion of the Diablo Canyon physical security plan. The Board directed L r.inson physical security plan wisely. Qith respect to the PG&E claim that it ~ that the plan be released to interrenor's counsel and to its expert witness, ,..g. of intenenor's counsel is likely to abic under the terms of a protective order and upon execution by these ; indmduals of an amdavit of non-disclosure. On April 14,1980 the ( ,. der and afndavit of non-disclosure, we applicant, PaciGc Gas and Electric Company (PG&E) Gled a motion with,.mured the Appeal Board that he will abit the Commission seeking a stay of the Appeal Board's order and also filed a - ,.rder and the amdavit of non-disclosure. pention requesting Commission review of the Board's decision to release .wreme Court of California he must the plan to the mtenenor. PG&E opposes turning over the sanitized mnstrated that he has breached these a physical security plan to the intervenor because it believes that there is A could be placed in jeopardy. We belis madequate assurance that one of intervenor's counsel will abide by the cuuot.dai,e Eduon company o/New York (inear terms of the amdavit of non-disclosure. On April 21,1980, the Commission m, m m,w with the phey set 6 issued an erder directing that the sanitized physical security plan not be turned mer to the mtervenor unless and until the Commission so directed. ( On Apnl 23, 1980, intervenor Gled a motion with the Commission 777 i 776 i l i i g = Y
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requesting a stay of the Board's order and petitior ng the Commission to [@y" Me,7; gpT.. i _~ -W 4 review the Board's decision. Intervenor believes 11at one of the provis ons -C cf the proposed aflidavit of non-disclosure is uncorctitutional. Y M A M ' N.' I[N N N M MnN.@ intervenor filed pleadines opposing PG&E's requests; PG&E filed a
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' **} ; p?cadinc opposint intervenor's motions; and the NRC staff filed pleadincs ~ cpposing the requ'ests of both PG&E and the intervenor.The Commission has
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~ the interrenor. Because the Commission has acted upon t e pet t on g {' M review, the motions to stay the Appeal Board order are moot and the
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,, gggg{g' tation ng. g f.G, W f ;.#] Commission will not rule upon them. w J. j,. In its petition for review PG&E argues that the phyu_ cal security plan d Cir,' ,gg should not be made available to petitioners because the best method of i _' 3 W - \\ >,. preventing public disclosure of this sensitive document is to make it f.:c g g y=. g g g9 g asailable to the fewest number of individuals possible. The Commission i -- j g recognizes PGkE s concern, but emphasizes that intervenors in Commis-N " 5 I"'##
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'N " " ] g f.T V Zgp y W-} In this proceeding the Appeal Board in PPmPriate protective orders.2 and in its Second Prehearing Conference; 'tected l ~ -A h ALAB-410,5 NRC 1398 (1977)11,1980 (ALAB-592), has set forth guidelines on when and such under what conditions physical security plans may be mad 6 available to j -~ Order of Apnl intervenors. The Commission has reviewed these orders, and with the one exception noted below, endorses the guidelines developed by the Appeal the Board has done a commendable 3'ob of Board. We believe that neanno interpreting the law and balancing competing policy interests, and has e j venor issues raised by requests for access to the Diablo jQ I handled the sensiti Canyon phs sical security plan wisely.With respect to the PG&E claim that it is u I, trected sitness l f imersen t's counsel is hkely to abide by the terms of the protective Q order ar.d affidavit of non-disclosure, we noted that the individual has ne F_7 ' = m*W- ~- PO i assured the Appeal Board that he will abide by the terms of the protective DC be* .n with fh ? order and the aflidavit of non-disclosure. As a member of the Bar o t e Supreme Court of California. he must be acutel} aware that if it can be release Jemonstra'ed that he has breached these acreements, his license to practice ~ . ap g g mtued law cou:d be placed in jeopardy. We belie [e this possible sanction, plus his 2),7 AEC 947,949 f ' Con.whd.mJ Ebon Compny of Ne Fora (Indian Point Station, Unit UESSIOD %e ngam are muun with the policy set forth in Section 181 of the Atomic Energy (108) not be rected. Aci. -. a tssion 777 i i 4
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- f 51'd assurances, are sumcient grounds to conclude that the counsel will abide b csecuted a revised affidavit of non-disc l
his commitments. We therefore direct that PG&E make the sanitiz8 .a s enion of 6e physical security p an. version available to the intervenor. ,s.. O R D E R E D.2 Intervenor challenges a provision of the proposed amdavit of nondiscla sure which would prohibit those subject to the protective order ug For the ( amdavit cf non-disclosure from publicly discussing or commenting upe.p protected information which is obtained (a) outside of the course of tQ SA si.UE1 proceeding or (b) which has been publicly disclosed by others. Interve rr secretary argues that this limitation violates the First Amendment of the Consti::,{
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tion. e~ ~I.:ne 1980. r The Commission agrees with the intervenor. In several recent cases 5 courts have made clear that protective orders mag not constitut.oc4 g.IE W S O F C O N1 M IS y preclude pubhc dissemination of mformation which is obtamed outside a the hearing process. See Rodgers v. United States Stect Corporation. 535 Fl.' g ! :nt Amendmen. : e.hibi~ I " l 1001.1007 (3rd Cir.1976): Intcenational Products Corporation v. AW.r..O 4 ,wtected infc;-~~ P: F.2d 403,408 (2d Cir.1963); and /n Re Halkin. 598 F.2d 176.195. e 6] [ .'.t Such a pr' ' Mi " ) I (D.C. Cir.1979). -j t n eners in v:' E" '" t,,7 c..rporation. W. 'F.2d in reaching these conclusions the Commission wishes to emphasize twa j l points. First. the amant making the public disclosure is prohibited f%._,
- ,. the CommisW. t-nend corroborating the accuracy or inaccuracy of the outside informath k
..e. h uwion of ". ', ependc using protected information gained through the hearing process. S=.%, -. ., :. s 5 ;,ty of a t r ' ', res
- r. c: Appea; b. 3 -: cle-the Commission discourages participants in Commission proceed::pj:M -( -. -
o <= .2 : __s gathering protected information from independent means and p W!d .r.n prier re"~unt 55 disseminating such information. gd i - -- .--.~. --s -p r.t to protec ra : only -- mi Chairman Ahearne and Commissioner Hendrie believe that hekst w a - u w hich r.:i.3 - -w.."t.s hited i c.iar mtervenors publicly disseminate protected information gained outside $ hearing process they should be required to establish to the satisfad%s r. re str. S the board presiding over the Commission proceeding - in the preern the Appeal Board - that the information was in fact cained outsde N. "N~' ~ -"~~' ' hearmg process. Commissioners Gilinsky and Bradford do not be.ew =
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~ restraint. Because the Commission is divided on this matter it rem 2*M - . [." ' ' '~ ' ~ [th issue back to the Appeal Board and directs the Board based i'- $ ' ', ~ readine of the law to select one of these two options. Arter cM. 1.c decision the APPcal Board shall modify the amdavit of non-d#g"* * - cd that it conforms wi*h the Board's decision. The Board's decision su -.~ y. g s tesiew ed b.y the Commission. As soon as intervenor's counseland.. -a.w - e *=o.ru o., o, wo 1 a -n, ..f f:. ' .G b m 778 U*W S n~ n - wam v v.~-.~.s~ w 5& l ~5.i.QNS...h... n er 1r c.% .6 ,e
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~ '.y, r-p h ew e-~- _y e M., -~_=._.w- ~ t P. have executed a revised afndavit of non-disclosure, PG&E is to make the Q^s = ~ M _ _ ide by litized j omtized version of the physical security plan available to these individuals. C7 ' WWWN w~ i lt is so ORDERED) M8ibJ 4 fisclo-[t [%NTMJ423!if For the Commission h Tj-$$Dg eand[. upon' brNMEGeA-~r"Jgt d V M l' & % S MI $ M i E R af this SAMUEL J. CHILK Secretary of the Commission { g venor sstitu- -m;e Dated at W,ashington, D.C. this lith day of June 1980. Es, the I anal!v t. ADDITIONAL VIEWS OF COM511SSIONER BRADFORD !' y**r.. m. s W +.q~ ~, f -- h .= n dde o'r. ^ r ^ - i F.2d I I gree that the First A nendment prohibits an affidavit which forecloses y. = n pr tec red information obtained outside the proceeding r s 325 I -'- G - -- s 9_ public comment ' nAS ; or disclosed by others. F.ich a prohibition constitutes a prior restraint on l the speech of the intervenors in violation of the First Amendment. Rodgers
- v. United Srares Sicc/ Corporation, 536 F.2d 1001,1006 (3rd Cir.1976). To l
h [ I"* t m by [ cure this infirmitv, the Commission amends the affidavit to remove t e I absolute restraint on discussion ofindependently obtained information, but ~ I nd, ! leaves open the possibility of a prior restraint upon the speech of the intervenors in the form of Appeal Board clearance prior to public comment. . fmm I do not agree that this prior restraint is permissible. It is clear that tiie fliCIJ( First Amendment sought to protect not only against absolute restraints, but l fore 1 also against restraints which might or might not through governmen:al y l processes be subsequently lifted. See Near v. Minnesota ex rel Olson,283 e the Pn of U.S. 697 (1931), Furthermore, this prior restraint would be unreasonable and discrimina-fcase tory in its application. An examination of such a restraint order reveals the ~3 Lf the j bthat following-g Tne purpose of such a prior restraint order must be to prevent _J They 1. disclosare of features of the security plan. However, our order explicitly ~^ $ prior recognizes that the possible sanctions flowing from disclosure "are this sufDeiem grounds to conclude that the counsel will abide by his commi:ments! It is not clear how the proposed restraint will be any l ggj own jg its more ettective than the sanctions already in place. The afDdavits need only be signed by the intervenors, not by utility re so 2. ,t be ; personnel or NRC employees. No showing has been made that the {, interve ners are inherently less trustworthy than other persons who have
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i gg i 'cemmmecer Kennedy has recused himself frem this proceeding. E f 779 ~...-- .i + m., .u.as. w ~ n Mt"M*litFiba6t%M ' - g $~54 % Q X*.' Q Q g.:=g~_= %Nw.,. m.,.,y _g w -t
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I ~Ii i seen the plan, yet they are singled out. Utility employees are under no Cite as 11 NRC 781 NRC sanction whatsoever from disclosing this information, and thf certainly would not be required to come to the Board prior to UNITED STATES OF A discussing the plan.' Commission staff would face sanctions if thf NUCLEAR REGULATORY C were still with the Commission, but they would not be subject to the proposed prior restraint and would be free to comment upon publicly COMMISSIONEI j, as ailable information regarding the security plan. In conclusion, I agree th.t PG&E should be required to turn over the John F. Ahearne, C' physical security plan to the intervenor. I would support a protective order Victor Gilinsk: which provides for an affidavit prohibiting disclosure of the protected Richard T. Kenn information gained through participation in this proceeding. I would, Joseph M. Hen < however, require the same affidavit from other attorneys and witnesses. Peter A. Bradic e t w Matter of 1 wtTROPOLITAN EDISON COMPANY, er al fTwree Mile Island Nuclear s.
- -{g station. Unit 2) 4 t'yn consideration of the stafrs reco
-9 ,,,,,n,,e to commence a controlled purging at.ephere to remove the remaining radios l
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e Sx living near the facility (as well as < E e.:t: result in a long-term reduction in the b t.w area; and that there is sufficient need to E'
- -e wntainment atmosphere tojustify goir
- .r ; m; rammatic impact statement current MEMORANDUM AN lhe Commission has before it a stafT re
~ st-:mphtan Edison Company, et al., .. r:..!ied purging of the TMI-2 reactor .-..se the remaining radioactive Krypto % = c f me radionuclides originally released into ~
- t. e pf. cant levels. The dominant remaining ras
'It is not enough to argue that the utihty is free to release its on proprietary information, for' wh has a 10.7-year half hfe. The Environmen$ the pu%: tealth and safety consequences are all that are alleged tojustify the measures being ?*Jo cunes of Kr-85 are mixed in the containmes
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