ML20045E828
| ML20045E828 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 04/16/1980 |
| From: | Bickwit L NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML20038A409 | List:
|
| References | |
| FOIA-92-436 SECY-A-80-057, SECY-A-80-57, NUDOCS 9307060105 | |
| Download: ML20045E828 (52) | |
Text
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j UNITED STATES NUCLEAR REGULATORY COMMISSION SECY-A-60-57 April 16, 1980 WASHINGTON, D. C. 20555 CONSENT CALENDAR ITEM ADJUDICATORY To:
The Commission From:
Leonard Bickwit, Jr., General Counsel
Subject:
Diablo Canyon--Release of Physical Security Plan to Intervenors
Purpose:
Discussion:
On April 2, the Appeal Board held a prehearing conference for the purpose of establishing pro-cedures and schedules for receiving evidence on the adequacy of the Pacific Gas and Electric Company's security plan for the Diablo Canyon facility.
Following this prehearing conference on April 11, 1980, the Appeal Foard issued the attached Second Prehearing Conference Order.
In its Order the Board stated that it intended to provide a sanitized version of the physical security plan to counsel for the intervenors and its proposed expert witness, a retire 3 San Francisco Deputy Police Chief en Monday., April 21.
This. plan would %e -released. under.dthe.. terms of. a
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r protective order which would, preclude-intervenors' counsel and expert witness fron disseminating the yI information to others.
Counsel would be requited 5,I to execute affidavits of non-disclosure.
At the rJ l prehearing conference, PG&E filed a motion with-M '
the Board requesting the Board to stay any order it issued releasing the plan.
The Appeal Board f
denied the stay stating that it had confidence 6,.3,
e' that intervenors would abide by the terms of the-
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protective order and affidavit of non-disclosure.
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[U hf PG&E late yesterday afternoon filed a cotion 2yb requesting the Commission to stay the Appeal 2rMf 5 Board decision.
A petition seeking Connission dSEb.-
review of the Appeal Board order was also filed 9
at the same time by PGEE.
PG&E's main argument 9 ;$ U.'
-"5 is that the sanitized version of the security d
plan should not be released to Intervenors' counsel because it is unable to ascertain with*
CONTACT:
SECY NOTE: This paper is identical to advance copies Trip Pothschild, OGC which were circulated to Comission offices by OGC 4-1465 on' April 16, 1980.
93o7060105 930317
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any certainty whether -Intervenors ' counsel. is likely to abide by the terms of the-protective order and affidavit of non-disclosure.
PG&E argue.:
that in order-to protect. the integrity. of the security plan something more than-a protective' order'and affidavit of non-disclosure-is required.-
One option they suggest would;be to require indi-viduals to have a federal' security clearance before reviewing the material..
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Leonard Bickwit, Jr.
General' Counsel Attachment L~
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Draft order s
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PG&E stay motion and petition.
for review e
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. Commissioners' comments or consent should be provided directly to the Office of the-Secretary by Noon, Friday, April 18, 1980.
The General Counsel has requested affimation by c.o.b., Frida',, April 18, 1980.
DISTRIBUTION Commissioners Commission Staff Offices Secretariat
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE NUCLEAR REGULATORY COMMISSION In the Matter of
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PACIFIC GAS AND ELECTRIC COMPANY
)
Docket Hos. 50-275 0.L.
)
50-323 0.L.
(Diablo Canyon Nuclear Power Plant,
)
Units No. 1 and 2)
)
)
APPLICATION OF PACIFIC GAS AND ELECTRIC COMPANY FOR STAY OF APPEAL BOARD'S ORDER REQUIRING DISCLOSURE OF A SANITIZED VERSION OF THE DIABLO CANYON SECURITY PLAN Pursuant to 10 C.F.R. S 2.788, Applicant PACIFIC GAS AND ELECTRIC COMPANY (" Applicant") requests the Commission to stay the Second Prehearing Conference Order (" Order") dated April 11, 1980,
- 1. -._ ;. _ =.. _.. a.
as issued by the Atomic Safety Licensing and Appeal Board (" Appeal.-
..;-y Board").
By such Order the Appeal Board has directed that, upon execution of an affidavit of non-disclosure, it will grant counsel for the Intervenor SAN LUIS OBISPO MOTHERS FOR PEACE ("Intervenor")
access to a " sanitized" version of the Diablo Canyon security plan on April 21, 1980, unless the Appeal Board or the Commission directs otherwise prior to such date.
The serious implications associated with disclosure of a sanitized version of the Diablo Canyon security plan warrant this Commission to direct the Appeal Board to withhold access from Intervenor's counsel pending the Commission's decision on a petition for review filed contemporaneous 1y herewith by Applicant.
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As set forth in the Appeal Board's Order, Applicant requested a stay of the Appeal Board's' decision to disclose to Intervenor's counsel during the prehearing conference held on April 2, 1980.
The Appeal Board denied the request.
(Order at 17.)
I.
WHETHER APPLICANT IS LIKELY TO PREVAIL ON THE MERITS It is implicit in the Appeal Board's Order that disclosure of security plans to lawyers under a protective order and an affidavit of non-disclosure is acceptable and required by law for no other reason than they are lawyers, irrespective of any other qualifications or lack thereof.
Apparently, the Appeal Board is laboring under the misapprehension that lawyers, by virtue of their license to practice, are uniquely endowed with integrity and are never guilty..of misdeeds.
This might not.be. _too. surprisingt because the Appeal Board that--issued the Order ~ includes'two
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lawyers.
Among the several lessons learned from recent history, however, is that lawyers are merely mortal and are not entitled by reason of their licenses to any presumptive standing or status, and clearly do not have any more integrity or judgment than anyone else.
Applicant is unable to ascertain with any certainty J
whether Intervenor's counsel is likely to abide by the terms of the protective order and affidavit of non-disclosure.
Without insinuating in any way that Intervenor's counsel are a risk as respects disclosure, Applicant simply does not and cannot know what the specific risks are.
However, in the interest of protecting the 2
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One option which is available to the Commission would be to order that any person reviewing any portion of the security plan voluntarily submit to a security check, such as a "Q" or "L"
clearance by the appropriate federal agency, upon request of the Applicant.
The Appeal Board points to this Commission's Order in' Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units No.1 and 2), CLI-77-23, 6 NRC 4 55 (1977), in support of its decision that some disclosure of the security plan is required.
Applicant disagrees with the Appeal Board's conclusion respecting the Commission's views as expressed in CLI-77-23. What the Commission said was that the sufficiency of-an' applicant's security plan i,s relevant to the f_indings,and_determin,tions that a
must be made before an operating license may be,fssued.. : Th e - -. - - _,
Commission then added:
"The extent to which the above principles and the facts of this case require disclosure beyond the general outlines and criteria of the applicant's security plan is a matter for the Licensing Board to decide in the first instance and under the guidelines of ALAB-410, subject of course to tne ordinary procedures for review cy the Appeal Board and the Commission." 6 NRC at 456 (emphasis added).
The time for Commission review is at hand.
As fully explained by Applicant in its petition for review, any prior appeal by Applicant would have been interlocutory in nature.
The Appeal..
Board is simply wrong in suggesting otherwise.
Finally, the Appeal Board's Order is erroneous because, contrary to the rules established in the Northern States Power case, Northern States Power Company (Prairie Island Nuclear Generating Plant, Units 1 and 2) ALAB-28 8, NRCI-7 5/9 39 0, 3 9 3 (1975), it permits Intervenor to reenter the proceeding even though the Licensing Board ruled Intervenor had voluntarily defaulted.
Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units No. 1 and 2), LBP-79-26, 10 NRC (1979) (slip opinion at 93).
The Licensing Board's ruling was the central issue in the Intervenor's appeal, but the Appeal Board deliberately sidestepped the issue.
However, until the Licensing Board's ruling is reversed and set aside, it stands as the law of the case and Intervenor is not a proper party to any reopened evidentiary proceeding.
II.
WHETHER APPLICANT WILL BE IRREPARABLY INJURED UNLESS A STAY IS GRANTED.
The very nature of a security plan argues against
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dis' closure.
Applicant has long maintained that "the greater the number of individuals who know the details of the plan, the greater the risk that the details will become public knowledge."
Pacific Units Gas and Electric Company (Diablo Canyon Nuclear Power Plant, No. 1 and 2), ALAB-410, 5 NRC 1398, 1401 (1977).
The Commission itself has acknowledged that "the prospect of even limited disclosure of physical security plans for nuclear facilities poses serious and difficult questions."
CLI-77-23, 6 NRC at 456 4
4 (emphasis added).
Furthermore, the Advisory Committee on Reactor Safeguards ("ACRS") has expressed its belief that the disclosure of security plans "will reduce severely the ability of licensees to provide adequate protection against sabotage."
Letter f rom M. Bender, Chairman of the ACRS, to Joseph M.
Hendrie (August 18, 1977) (emphasis added).
Whether it is the disclosure of a " sanitized" version of the plan, or something more, such a disclosure 'is a breach of the integrity of the plan.
Once the plan is disclosed, it would do no good for this Commission, or some other tribunal, to decide later that the plan should not have been disclosed.
As explained by Applicant in Part I of this Application, there'is no way for Applicant, or, for that matter, this Commission, to i
know whether the terms of the protective order and affidavit of non-disclosure.will.be respected.. With a subject as sensitive as security, it is best to be safe, and not disclose at all. In addition, it will not do for the Appeal Board to attempt to minimize the significance of the disclosure i't has ordered by noting that it is only a " sanitized" version of the plan that will be handed over. Any disclosure other than a general outline (such as the table of contents) would release details of the J
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plan, aloeit not necessarily " gory" details.
Yet, if such details became public knowledge, the plan would be destroyed.
As Chcirman Salzman stated during the prehearing conference:
"Let us not talk in the abstract.
We are l
discussing information which if it gets out, j
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it simply would destroy or injure the plan.
We are not talking about things (which if they get out), somebody can be sued later."
(Transcript at 22.)
1 Intervenor and the Appeal Board are willing to Even assuming that it l
proceed with the plan as " sanitized" by Applicant and the Staff, is hard to imagine that Intervenor will argue other than that without some of the " gory" details, it will be unable to draft its contentions with any greater specificity. Thus, further details will undoubtedly be requested. In fact, further disclosure
" Th e apparently has already been contemplated by the Appeal Board:
f only information currently scheduled for release to intervenor is a sanitized version of the plan." (Order at 18, emphasis added).
III.
WHETHER THE GRANTING OF A STAY WOULD HARM INTERVENOR The Appeal Board states in its Order that because it cannot Intervenor is a public organization with limited funds, The be expected to bear the burdens of litigation indefinitely.
Appeal Board then concludes that another delay would be an unnecessary hardship on Intervenor.
Applicant submits that the harm described by the Appeal Board"is simply insignificant.
It must not be forgotten that Intervenor had withdrawn from the security plan proceeding in It was not until the Appeal Board decided to January, 1979.
conduct a de novo hearing, and, by flat and grace, determined it to i
be appropriate for Intervenor to participate, that Intervenor's _
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It seems strange, litigation of the security plan resumed.
that the Appeal Board would basically ignore the fact
- indeed, that Intervenor had withdrawn thirteen months prior to the l
decision to conduct a de novo proceeding, and then suggest that granting the stay requested by Applicant would constitute an
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unnecessary burden.
Applicant submits that the expense for In any event, Intervenor if a stay is granted would not constitute the severe hardship the Appeal Board would have the Commission believe.
At the expense would be the preparation of an answer to
- most, Such could hardly be described Applicant's Petition for Review.
as a severe hardship.
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IV.
WHERE THE PUBLIC IliTEREST LIES.
Although traditionally the consideration of the public is not the focus of the Commission's attention in the interest review of an application for a stay, in this case the, factor is Contrary to the equally important to any of the previous three.
1 Appeal Board's treatment of this factor, more is involved than "there must be an end to litigation."
(Order at 21.)
It is patently unfair for the Appeal Board to single out this application for ' stay as an unnecessary protraction of the After all, it was Intervenor who, time and time litigation.
again, proffered unqualified witnesses and sought review of the various decisions holding its witnesses to be unqualified.
It was Intervenor which withdrew from the proceeding before the
. Licensing Board and then came forth with new counsel immediately Furthermore, preceding the hearing in an attempt to jump back in.
it was the Appeal Board which decided to conduct a de novo proceeding and te. have Intervenor participate.
The pzincipal consideration here is whether it is in the public interest to disclose during the course of a proceeding for an operating license any details (" gory" or otherwise) associated with the security plan for a nuclear power plant.
Those who are sensitive to maintaining the integrity of security plans see the illogic in the disclosure of such plans.
They include this Commission, the ACRS and members of the Appeal Board panel.
See ALAB-410, 5 NRC at 1407 ( Additional comments of
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Dr. Quarles and Dr. Johnson).
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Knowledge of the details of a plant's security system ' ' '
would obviously make it easier for a person or persons seeking to For this reason inflict harm to the facility to defeat that system.
alone, security plan information must be protected against In the interest of public health and safe'ty, this disclosure.
Commission must decide to stay the Appeal Board's Order and decide for itself the extent to which security plan information should be disclosed during a licensing proceeding.
WHEREFORE, Applicant respectfully requests the Commission i
to stay the effectiveness of the Appeal Board's April 11, 1980 Order pending the Commission's review of the petition for review J
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filed contemporaneous 1y herewith by Applicant.
Respectfully submitted, MALCOLM' E. FURBUSH PHILIP A.. CRANE,. JR.-
Pacific Gas.and Electric Company-77 Beale Street San Francisco, California 94106 (415) 781-4211 ARTHUR C.'GEHR Snell & Wilmer 3100 Valley Center
- Phoenix, Arizona 85073 (602) 257-7288 BRUCE NORTON 3216 North Third Street Suite 300 Phoenix, Arizona 85012 (602) 264-0033 Attorneys for Pacific Gas and Electric Company.
t er 933 By~
Bruce Norton-DATED:
April 14, 1980.
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l UNITED STATES OF AMERICA j
NUCLEAR REGULATORY COMMISSION BEFORE THE NUCLEAR REGULATORY COMMISSION In the Matter of
)
)
Docket Nos. 50-275 0.L.
PACIFIC GAS AND ELECTRIC COMPANY
)
50-323 0.L.
)
(Diablo Canyon Nuclear Power
)
Plant, Unit Nos. 1 and 2)
)
PETITION OF PACIFIC GAS AND ELECTRIC COMPANY FOR REVIEW OF APPEAL BOARD'S ORDER REQUIRING DISCLOSURE OF A SANITIZED VERSION OF THE DIABLO CANYON SECURITY PLAN Petitioner PACIFIC GAS AND ELECTRIC COMPANY
(" Petitioner") hereby petitions the Commission to review the Second Prehearing Conference Order (" Order") dated April 11, 1980, as issued by the Atomic Safety and Licensing Appeal Board (" Appeal Board").
By such Order, the Appeal Board has directed that, upon execution of an affidavit of non-disclosure, it will grant counsel for the Intervenor SAN LUIS OBISPO MOTHERS FOR PENCE ("Intervenor")
access to a " sanitized" version of the Diablo Canyon security plan on April' 21, 1980, unless the Appeal Board or the Commission directs otherwise prior to such date.
The primary issue raised by the Appeal Board's Order, and the impelling reason for filing this Petition, is the requirement that a version of the security plan other than a general outline (such as the table of contents) be disclosed to Intervenor's counsel with no safeguards other than a protective order and affidavit of non-disclosure.
The matters raised in this Petition for Review were
raised during the April 2, 1980, prehearing conference in connection with Petitioner's Application for a Stay before the Appeal Board.
( See ' Order at 9-12, 14-22, transcript at 56-8 2, 136-142).
I.
WHY THE COMMISSION SHOULD REVIEW THE APPEAL BOARD'S ORDER.
The disc losure of even a portion of the security plan for a nuclear facility is a matter of grave concern.
The Commission itself has explicitly acknowledged that "the prospect of even limited disclosure of physical security plans for nuclear f acilities poses serious and difficult questions."
Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units No. 1 and 2), CLI-77-23*, 6 NRC 455, 456 (1977) (emphasis added).
It will not do to say, as the Appeal Board does in its Order, that Intervenor's counsel will have only limited access to the sanitized version of the plan.
Disclosure of any of the plan can have serious consequences.
Limiting Intervenor's access to a specific place may narrow the chance of disclosure but certainly does not eliminate it.
Even were the Board's conception valid, it is clear that the Appeal Board itself anticipates that under the precedent it is attempting to establish, there will be more disclosures in this proceeding:
"The only information currently scheduled for release to intervenor is a sanitized version of the security plan."
(Order at 18, emphasis added.)
Although the sanitized version contains none of the plan's " gory",
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i details, disc osure of any version which contains more than a l
general outline (such as the table of contents) would' disclose details of the plan..
Thus, the disclosure of even a sanitized
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version violates the plan's integrity.
In addition, and as f
i seemingly contemplated by the Appeal Board, it is unlikely that Intervenor will find the sanitized version sufficient for. its J
purposes in refining its contentions or in making any judgments
-l about the adequacy of the plan.
Thus, if the sanitized version is handed over, a number of requests for disclosure of further f
details from Intervenor should be anticipated.
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The questions of whether disclosure should be to whom the disclosure should be made and the conditions
- required, J
that should be imposed in event of disclosure are questions of
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policy which must be addressed by the Commission itself.
To 1
permit the Appe.a1 Board to usurp the Commission's powers and w 1... -
responsibilities to establish policy on an issue of such_
importance is unthinkable.
Yet, if this Petition is denied, the f
Commission shall have acquiesced in such usurpation and avoided its responsibility.
Even more damning, the denial of this Petition will accomplish this result without providing any opportunity to air the arguments which should be made against the disclosure policy established by the Appeal Board.
It will not do to hide behind some legalistic l
J subterfuge that the Petitioner did not take advantage of prior opportunities to seek Commission review of the Appeal Board's decision that some disclosure of the Diablo Canyon security plan 4 1 m
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is required.
None of the Appeal Board's prior written opinions on this matter were appealable.
ALAB-410 ordered that Intervenor could review the plan if it qualified an expert, but no expert was ever qualified.
In addition, in ALAB-410, the Appeal Board suggested as a guideline to the Licensing Board that the plan was to be made available to Intervenor's counsel, but such release could be read to be contingent on Intervenor's qua'lification of an expert, based on the Appeal Board's admonition that "[t]he plan, or any portion thereof, is to be released solely to individuals qualified to review it."
ALAB-410, 5 NRC 139 8, 1406 (1977).
In
'any event, Intervenor's counsel never asked for the plan.
Furthermore, Intervenor's counsel informed the Licensing Board.that they were unable to conduct a meaningful review of the plan in the absence of finding a qualified witness, and for that reason Intervenor withdrew from the security plan proceeding in January,-
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1979.
Additional counsel for Intervenor appeared on the. eve of the
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February, 1979 hearing and, in an attempt to. convince the Licensing Board that Intervenor should be permitted to reenter the proceeding,,
argued that he was qualified to review the plan. The Licensing Board ruled, however, that Intervenor had withdrawn in January, 1979, and would not be permitted to jump back in the proceeding.
This ruling has yet to be overturned.
'In sum, Petitioner has never, until now, been ordered to turn over anything to anyone respecting the security plan.
Petitioner saw nothing to be gained by attempting some interlocutory or piecemeal appeal to the Commission.
As 1
o if the suggested earlier, Petitioner considers it likely that, sanitized version is released, Intervenor will ask for the disclosure of further details of the plan.
Thus, even at this stage, not all of the potential issues have been f ramed with ultimate precision.
Nonetheless, because the Appeal Board has ordered the disclosure of the sanitized version on April 21, 1980, the general issue of disclosure is suf ficiently ripe for Commission review.
Establishment of policy governing the disclosure of If this j
. security plans must be accomplished prior to disclosure.
commission grants this Petition or otherwise accepts review of the Appeal. Board's Order, it will have exercised its responsibility to establish policy.
To do otherwise will be an abdication. -If this Commission declines to review the Appeal Board's order at this stage, the harm of disclosure may well have been wreaked upon the Petitioner and the public before the matter will again be subject-l to review.
It has previously been recognized that disclosure of the contents of security plans could " reduce severely th,e ability of licensees to provide adequate protection against sabotage."
Letter Bender, Chairman of the Advisory Committee on Paactor from M.
Safeguards, to Joseph M. Hendrie (August 18, 1977).
The exposure of Petitioner and the public to such ri'sks without adequate hearing is not only contrary to basic laws of fairness, but completely without warrant under circumstances where a delay in disclosure to.
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t permit Commission consideration of this vitally important issue will impose insignificant hardship upon Intervenor or anyone else.
'II.
WHY THE APPEAL BOARD'S ORDER IS ERRONEOUS.
It is implicit in the Appeal Board's Order that disclosure of security plans to lawyers under a protective order i
and an affidavit of non-disclosure is acceptable and required by law for no other reason than they are lawyers, irrespective of any other qualifications or lack thereof.
Apparently, the Appeal Board is laboring under the misapprehension that lawyers, by virtue of J
~
- their license to practice, are uniquely endowed with integrity and This might not be too surprising, are never guilty of misdeeds.
because the Appeal Board that issued the Order includes two Among the several lessons learned from recent history, lawyers.
is that lawyers are merely mortal and are not entitled'by i
- however, reason of their licenses to any presumptive standing or status, and clearly do not have any more integrity or judgment than anyone else.
Applicant is unable to ascertain with any certainty whether Intervenor's counsel is likely to abide by the terms of the Without protective order and affidavit of non-disclosure.
insinuating in any way that Intervenor's counsel are a risk as respects disclosure, Applicant simply does not and cannot know what-,
. in the interest of protecting the
- However, the specific risks are.
integrity of the security plan, something more than a protective One' option order and af fidavit of non-disclosure is required.
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which is available to the Commission would be to order that any person reviewing any portion of the security plan voluntarily submit to a security check, such as a "Q" or "L" clearance by the appropriate federal agency, upon request of the Applicant.
The Appeal Board points to this Commission's Order in Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units No. 1 and 2), CLI-77-23, 6 NRC 455 (1977 ),
in support of its decision that some disclosure of the security plan is required.
Applicant disagrees with the Appeal Board's conclusion respecting the Commission's views as expressed in CLI-77-23. What
'the Commission said was that the sufficiency of an applicant's security plan is relevant to the findings and determinations that must be made before an operating license may be issued.
The Commission then added:
"The extent to which the above principles and the facts of this case require disclosure beyond the general outlines and criteria of the applicant's security plan is a matter for the Licensing Board to decide in the first instance and under the guidelines of ALAB-410, subject of course to the ordinary procedures for review by the Appeal Board and the Commission." 6 NRC at 456 (emphasis added).
The time for Commission review is at hand.
As fully explained by Applicant in Part I of this petition for review, any prior appeal by Applicant would have been interlocutory in nature.
The Appeal Board is simply wrong in suggesting otherwise.
i Finally, the Appeal Board's Order is erroneous because, contrary to the rules established in the Northern States Power "
4 case, Northern States Power Company (Prairie Island Nuclear Generating Plant, Units 1 and 2) ALAB-288, NRCI-75/9 390, 393 (1975), it permits Intervenor to reenter the proceeding even though the Licensing Board ruled Intervenor had voluntarily defaulted.
Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units No. 1 and 2), LBP-79-26, 10 NRC (1979) (slip opinion at 93).
The Licensing Board's ruling was the central issue in the Intervenor's appeal, but the Appeal Board deliberately sidestepped the issue.
However, until the Licensing Board's ruling is reversed and set aside, it stands as the law of the case and Intervenor is not a proper party to any reopened. evidentiary proceeding.
WHEREFORE, Petitioner respectfully requests that the Commission grant this Petition and issue an appropriate order specifying the issues to.be reviewed.and direc_ ting that appropriate 4
briefs be filed or that oral argument be held, or both.
Respectfully submitted, MALCOLM B. FURBUSB PHILIP A. CRANE, JR.
Pacific Gas and Electric Company 77 Beale Street San Francisco, California 94106 (415) 781-4211 ARTHUR C. GEHR i
Snell & Wilmer 3100 Valley Bank Center Phoenix, Arizona 85073 l
(602) 257-7288 l
BRUCE NORTON
(
J 3216 North Third Street Suite 300 Phoenix, Arizona 85012 (602) 264-0033 _ _ _ _ - _ _ _ _ _ _ _ _ _ _
1 Attorneys for Pacific Gas and Electric Company By
,9J.MJL Bruce Norton DATED:
April 14, 1980.
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UNITED STATES OF AMIRICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD Richard S. Salzman, Chairman Dr. W. Reed Johnson j-Thomas S. Moore
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In the Matter of
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PACIFIC GAS AND ELECTRIC COMPANY
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Docket Nos. 50-275 OL
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50-323 OL (Diablo Canyon Nuclear Power Plant )
Units 1 and 2)
)
)
SECOND PREHEARING CONFERENCE ORDER (REPORT OF THE PREHEARING CONFERENCE HELD APRIL 2,19 80)
April 11, 1980 Pursuant 'to notice,- on April' 2,= 1980-.we held a' closed - ' 2 ---
prehearing conference in San Luis obispo, California, for the purpose of establishing procedures and schedules for receiving evidence on the adequacy of Pacific Gas and Electric Company's security plan for its Diablo Canyon nuclear facility.
Dr.' Johnson participated in the decisions described in this report and concurs in the results reached; he did however, review the final draft of the report.
- not, See also Dr. Johnson's individual view on one point expressed at p. 21,' infra.
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The following appearances were noted:
1.
For the San Luis Obispo Mothers for Peace, (a) intervenor:
Mr. Yale I. Jones, lead counsel 100 Van Ness Avenue San Francisco, California 94102 (415)431-5310 Mr. W. Andrew Baldwin 124 Spear Street San Francisco, California 94105 (415)495-4779 Mr. Paul C. Valentine 321 Lytton Avenue Palo Alto, California 94302 (415)327-6700 (Mr. Valentine's appearance was filed by mail; he did not attend the prehearing conference.)
For the licensee, Pacific Gas and Electric (b)
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Company:
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Mr. Bruce Norton, lead counsel 3216 North Third Street, Suite 300 Phoenix, Arizona 65012 (602)264-0033 Mr. Malcolm M. Furbush'and Mr. Philip A. Crane, Jr.
Law Department, 31st Floor 77 Beale Street San Franci'sco, California 94106 (415)781-4211 Mr. Arthur C. Gehr 3100 Valley Center Phoenix, Arizona 85073 (602)257-7288 M
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For the Nuclear Regulatory Commission staff:
Mr. James R. Tourtellotte, lead counsel j
(301)492-7474 i
Mr. Marc R. Staenberg. (301)492-8689, Mr. Edward G. Ketchen (301)492-7502, and Mr. L. Dow Davis -(301)492-7501 Executive Legal Director's Office Nuclear Regulatory Commission Washington, D. C.
20555 (Mr. Davis' appearance was filed by nail; he did not attend the prehearing confer-ence.)
2.
Lead counsel.
Each party has several lawyers and, in both the licensee's and intervenor's_ case, lawyers with '
separate offices in different communities.
In the past, this has resulted in some confusion about the actual position being expoused by one party or another.
Particularly as we will-be dealing with sensitive material, we,. directed each party._to.
_u m __
designate one. f its : representatives..to.act as.." lead. counsel " a o
. As previously set forth, the parties have each done so.
Lead counsel's responsibilities for his client in this proceeding are as follows:
(1)
Speak and act for his client in all matters except where he specifically designates one of his co-counsel to do so.
(2)
Sign all pleadings and motions.
(3)
Serve all papers.
(4)
Accept service of all papers.
d 9-~-
g n
n a
s
-~-w,
Motions, briefs and other papers are to be served on lead The counsel only, with copies to the members of this Board.
Secretary of the Commission (docketing and service section) shall not be served.
Because of the nature of the subject matter, we will make the necessary arrangements with the a
Secretary's office to insure that material entitled to con-fidential treatment under 10 C.F.R. E2.790 is not made public.
3.
Closed conference.
Intervenor moved to open the prehearing confercnce to the general public when specific portions of the licensee's physical security plan were not under actual consideration.
Upon consideration of arguments from the intervenor in favor of the motion, from the licensee in opposition, and from the staff, the motion was denied.
The announcementiof the prehearing conference had specified that it would be closed, the licensee represented that its presentations were prepared with that understanding in mind, and that it would aid the free exchange of ideas at this preliminary conference if counsel did not have to measure his words with extreme care in order to insure that he did not inadvertently disclose to the public confidential f
aspects of the licensee's security arrangements.
I
, 4.
Protective Order and Af fidavit of Non-Disclosure.
The licensee's physical security plan for the Diablo Canyon nuclear facility is entitled to confidential treatment under Commission regulations.
We' announced in our First Prehearing Conference Order (February 25, 1980) that neither the security plan nor information regarding it would be released to intervenor's counsel or expert witnesses except under protective order and upon their execution of a 2/
suitable affidavit of non-disclosure.
At our request, the parties prepared an initial draft of those-documents which, with some revisions on our part, were distributed to the parties and taken up at the prehearing conference. There were no objections raised to the form of the protective order.
With one exception, counsel for all parties were able to agree onaformofnEnhisclosure.af.fidavitthatwasac.ceptab1e.
d Among other things, that affidavit specifies the'way protected information will be handled, safeguarded' and accounted for.
Intervenor's counsel and witnesses would be given access to such information only at a facility in San Francisco to be made available by the licensee.
Protected information would 2/
see' also the extended discussion of this point in ALAB-410, j
5 NRC 1398, 1405-06 (1977).
i
~~
\\
i
, be retained at that site for safekeeping unless and until actually needed for the hearing.
(The protective order and the required form of affidavit of non-disclosure, which we have been advised intervenor's counsel have executed, are appendec to this report.)
One matter, however, could not be resolved by agreement.
The order and affidavit allow the recipients of " protected information" to discuss it only with " authorized persons" The (terns defined in the af fidavit and not in dispute).
question arose whether intervenor's counsel and expert witness could nevertheless discuss protected information publicly with outsiders where they had obtained such infor-nation from other sources, i_.e., other than by disclosttre under the terms of the protective _ order.
Ov.er.intervenor's objection, we ruled that such discussion, would.not le per. __ _.
mitted.
The ruling rests on several grounds.
First, the security Severe consequences to plan is very sensitive information.
Accord-the public safety may result from its compromise.
ingly, precautions necessarily must be taken to safeguard We believe it the wisest hurse in the circum-the plan.
stances to avoid any questions which might otherwise arise
, concerning whether security plan information from another source is similar or identical to that previously disclosed under protective order.
Second, the limitation on disclosure has been ~ narrowly drawn.
It runs only to counsel and the expert witness, not to the intervenor organization.
Protected information will not be given to the group itself under the procedures we have adopted.
See ALAB-410, supra, 5 NRC at 1404, 1406.
Because it covers only those very few individuals who will actually receive protected information pursuant to their terms, the order and affidavit work no infringement of intervenor's rights.
The order is carefully tailored to protect inter-venor's ability to participate effectively in the proceeding while, at the same time,'~ minimizing the possibility-of com-
~
promising license'e's' security arrangements'.-~
~
~
Third, intervenor's contentions in this proceeding boil down to the assertion that licensee's current security arrange-ments are inadequate.
Their espousal of that position is not hampered by their counsel's preclusion from discussing, out-side the hearing, details of those arrangements that have been revealed to them in confidence.
Counsel's broadcast of such information, from whatever source obtained, manifestly will
, not advance intervenor's proffered purpose of increasing the plant's protection from industrial sabotage.
- Indeed, even in public proceedings where sensitive information is not involved, the Code 'of Professional Responsibility of the American Bar Association considerably restricts the comments that counsel representing a party in an adminis-
'3 /
trative hearing may make to the public.~-
Finally, if intervenor's counsel should obtain protected information f rom an outside source, nothing in the protective order or af fidavit of non-disclosure precludes them from bring-3/
Disciplinary Rule 7-107 provides in pertinent part that (1)
During the pendency od an administrative pro ceeding, a lawyer or law firm associated there-with shall not make or participate in making _.~
a statement,--other than~a quotation from or reference to public records, that a reasonable person would expect to be disseminated by means of public communication if it is made outside the official course of the proceeding and relates to:
(1)
Evidence regarding the occurrence or transaction involved.
(2)
The character, credibility, or criminal record of a party, witness, or prospective witness.
(3)
Physical evidence of the performance or results of any examinations or tests or the refusal or failure of a party to submit to such.
defenses, or positions of an interested
~
j (4)
His opinion as to the merits of the clains, j
person.
(5)
Any other matter reasonably likely to in-terfere with a fair hearing.
(Emphasis supplied.)
ing that fact co our attention.
(Indeed, the protective j
order require:s that they do so.)
A request for reconsidera-tion could be made at that time, when we could rule in the context of a concrete ' situation and not en hypoth'etical cir-ccmstancer..
l 5.
Execution of Non-Disclosure Affidavits.
The next order of business was to have been the execution by inter-venor's counsel of non-disclosure affidavits.
Those doewments had to be retyped, however, to incorporate the changes adopted iat the prehearing conference.
In addition, intervenor's counsel wished to discuss those changes with their client.
We accordingly allowed intervenor's counsel until Monday, April 7th, to execute the affidavits in question if inter-venor wished to participate further in our review of licensee's physical security plan _ for the.Diablo. Canyon facility.
(At this writing, we have been advised that the affidavits have been executed by counsel, but we have not received the exe-cuted copies.)
6.
Objections to counsel.
In the past the licensee has objected to litigating any contention concerning the adequacy of its security plan that might allow intervenor to obtain information about that plan for fear that it might be publicly disclosed as a result.
We have previously rejected licensee's position.
See ALAB-410, 5 NRC 1398,' review' denied, CLI-77-23, 6 NEC 4 55 (1977 ).
Our First Prehearing Conference Order i
I
~.
4
, i provided that:
1
/
The law presumes that counsel will abide by their There-and comply with protective orders.
j oaths if any party has reason to believe that any j
counsel is not likely to abide by the. terms of a
- fore, protective order, it shall bring the informationu j
at the prehearing conference in a written motion to exclude that individual from the hearing and 1
from receiving the details of the security plan.
See ALAB-410, 5 NRC at 1406.
\\
pursuant to that invitation, licensee moved to exclude f rom participation in the review of the security plan one of 4/
intervenor's counsel, Mr. W. Andrew Baldwin.
The motion rested upon statements made by Mr. Baldwin reported in the news media.
This suggested to licensee an l
apparent lack of judgment and discretion on his part and,
^
"gives rise to serious questi6ns (about in its opinion,
- - u= -
.u likelihood of complyin'g with 'non-disclo~sure --"-- "
Mr. Baldwin's]
s a xerographic copy agreements."
Appended to the motion wa.
.I l
of one newspaper article that had appeared in the "Atascadero Licensee's motion papers represented that.it had no knowledge about whether intervenor's other counsel, 4/
Messrs. Jones and Valentine, would be likely to vio-q late the terms of the protective order _or the non-disclosure affidavit.
At the 'prehearing conference, however, licensee's counsel stated that he~ had no Tr. 59.
qualms about Mr. Jones in this respect.
Mr. Valentine was not present'at the conference and apparently will not participate in this phase of the proceeding because of other professional commitments.
9 n,re.e-,,w.
.,. - ~
-.w
News" on February 16, 1979.
The article purported to describe renarks made some fifteen months previous by Mr. Baldwin to a group opposed to the Diablo Canyon plant.
No other evidence of Mr. Baldwin's likelihood of disobeying a protective order was offered in support of licensee's motion.
Upon questioning by the Board, licensee stated that it had not attempted to investigate Mr. Baldwin's personal background.
Mr. Furbush,
(
the licensee's vice president and general counsel, explained the reason why not.
He stated that whether or not such in-vestigations were legally permissible, it was licensee's policy not to investigate individuals unless.they were seeking employment with it in a sensitive position.
Tr. 61-67.
The staff did not support the licensee's motion.
Tr.
67-68.
z, 2.-,.--. __ w -,_...
Mr. Baldwin stated in essence that he had not previously seen the newspaper article in question.
While he had no defi-nitive recollection,in his view the article appeared to be an I
incomplete representation of his remarks and, in any event, it did not establish that.he would disobey protective orders or disregard non-disclosure affidavits.
Mr. Baldwin represented affirmatively to us that he would comply with such orders and affidavits.
Tr. 78-79.
E
.+
. The Board, after deliberation, denied the motion to exclude Mr. Baldwin from further participation on the ground 5/
that applicant had not met its burden of. proof.~7 Tr. 81.
We have entered a protective order.
7.
Objections to qualifications and depositions of expert witnesses.
Intervenor proposes to use Jeramiah P.
Taylor as its expert witness.
Mr. Taylor retired earlier Accord-this year as Deputy Police Chief of San Francisco.
ing to the resume presented by intervenor, Chief Taylor's professional background includes experience in building and site security; protection from explosives; riot and crowd control; anti-sniper measures; protecting important individuals; hostage negotiations; intelligence; and disaster
':.l.--
== ~ L e
a-a:
Licensee's motion also urged that we postpone the se-5/
curity plan review until intervenor's counsel and wit-
~~
ness had been subjected to a "Q-clearance" background check.
The staff opposed this idea as impermissible under the regulations and, moreover, one that would When it delay the proceeding at least six months.
was suggested that licensing of Diablo Canyon might have to be delayed, in the interim if we adopted this course because it would mean putting off completion of the hearing on the security plan contentions, li--
censee stated that any such delay would be unacceptable.
In the circumstances, we denied this phase of licensee's mo' tion also.
. and security coordination.
Neither the licensee nor the staff objected to Mr. Taylor's overall qualification as an expert witness in security matters.
The licensee expressed the de-sire to depose him, however, to ascertain the extent of his expertise in specific areas.
The intervenor sought similar. leave to depose licen-see's two witnesses, Messrs. Medcalf and Dettman, to discover the extent of their expertise in security matters.
Intervenor represented that it had in mind the questioning each of these witnesses for "an hour or less. "
Tr. 98.
The staff desired to participate in the depositions of all three witnesses.
Leave to depose the three named witnesses at licensee's San Francisco offices was granted by the Board.
The depositions are to be taken on April 17th, unless counsel for all parties ag.ree on some earlier time or other location and notify us of the change.
9
. " Sanitized" version of the Diablo Canyon physical 8.
Our First Prehearing Conference Order instructed security plan.
the applicant and the staff jointly to prepare and give to us at the prehearing conference a " sanitized" version of the physical security plan for Diablo Canyon.8 It was our intent to review that version to insure that it did not reveal the operative por-tions of the actual plan in unnecessary detail, and then to allow intervenor's counsel to examine the sanitized plan under protec-tive order and the conditions specified in their affidavits of non-disclosure. 1/
For reasons explained in paragraph 5, how-ever, counsel did not execute those affidavits at the prehearing In addition, there was a misunderstanding about,,
conference.
We there.
precisely how the sanitized plan was to be prepared.
fore allowed the applicant and the,staf f until Friday, April 11,
)
We 1980, to submit their version of the sanitized plan to us.
also announced that one week thereafter, intervenor's counsel f
were to be given access to the sanitized version of the plan in accordance with the conditio'ns of their affidavits of non-I disclosure, provided, of course, that they had executed those affidavits.
See The term " sanitized" plan is explained in ALAB-410.
_1/
5 NRC at 1405.
Those conditions essentially restrict counsel's access 7/
to the plan to a room to be rade available in licensee's
~~
San Francisco offices.
1 i
' 9.
Licensee's motion to stay intervenor's access to the " sanitized" plan.
The steps we followed in calling for preparation of a " sanitized" security plan and our grant of access to it to intervenor (through counsel and expert witness) are in accord with the guidelines laid down nearly three years ago in this case.
ALAB-410, 5 NRC 1398 (1977).
Without repeating what was said there, that decision explaine why challenges to the adequacy of security plans for nuclear power plants may be entertained in licensing proceedings.
It also carefully circumscribes the conditions under which limited portions of those plans may be disclosed to inter-venors in order to permit those issues to be litigated.
In declining to review ALAB-410, the Commission stated in CLI-6 77-23, 6 NRC 455, 456 (1977) ; that
~~-
=-..;--~....
.....c
- *
- the prospect of even limited disclosure of physical security plans for nuclear facilities poses serious and difficult questions. * *
- Nonetheless, our responsibilities require the Commission to make certain findings and determinations before issuing an operating license for a nuclear power reactor, and the sufficiency of an applicant's proposed safeguards plans and procedures are relevant to those findings and determinations.
The extent to which the above principles and the facts of this case require disclosure beyond the general outlines and criteria of the applicant's security plan is a matter for the Licensing Board to decide in the
.first instance and under the guidelines of ALAB-410, subject of course to the ordinary procedures for review by the Appeal Board and the Commission.
Since that time, proceedings in this case have been conducted on the assumptions that the alleged inadequacies-
~
in licensee's Diablo Canyon physical security plan are
w cognizable contentions and that the intervenor is entitled to access to relevant portions of the plan -- at least to the ex-tent we contemplated in ALAB-410.
And considerable, time has been expended by the parties in litigation before the Licensing I
Board, ourselves, and the Commission over such matters as the qualifications of intervenor's proposed security plan expert witnesses. 8/
Notwithstanding this, on March 21, 19 80 the li-censee advised us by letter "that if and when we are ordered to turn over even the sanitized version of the [ security) plan we i
will file a motion for stay and an appeal to the Commission."
We placed that request for relief on the agenda of the prehear-ing conference and considered it there.
The grounds asserted by licensee for a stay and for their
" appeal" are not ba'sid'on any" objection'to the qdalifications of intervenor's proposed expert witness, retired San Francisco Deputy Police Chief Taylor.
Rather, we understand licensee to contend that even were Mr. Baldwin excluded from the proceeding, no litigation of the adequacy of its security plan should be allowed in this proceeding.
It is on this ground that licensee argues that the plan should not be disclosed to intervenor even in a sanitized form.
., ALAB-504, 8 NRC 406 (1978); ALAB-514, 8 NRC 8/
See, e.
697 (
) ; CLI-79-1, 9 NRC 1 (1979) ; ALAB-580,11 NRC
~~
(February 15, 1980).
)
i i
e
. 1 At the prehearing conference we announced that the licen-see's motion for a stay was denied by a unanimous vote of the Board on the ground that it had not established grounds for that relief.
See 10 C.F.R. 82.788(e).
First, licensee has not made "a strong showing that it is likely to prevail on the merits."
The legal question whether the adequacy of a security' plan is a proper issue for consid-eration in an adjudicatory proceeding was squarely addressed in ALAB-410 and is now the law of the case.
There, in reliance upon Cocadssion decisions as well as our own, we decided the issue adversely to licensee.
Id., 5 NRC at 1402 and following.
Licensee can take no comfort from the Commission's opinion ex-plaining its reasons for declining to review ALAB-410.
The Commission thererspecifically. stated:that some disclosure of the licensee's security plan was necessary to the conduct of this proceeding.
CLI-77-23, 6 NRC 455, 456 (1977).
The Com-mission would hardly have said that were it of the view that the subject matter was simply not open to litigation at all.
Neither are we impressed by licensee's argument that since ALAB-410 there has been no " final decision" of this Board on the question which it could use as a vehicle to obtain plenary Commission review of the issue.
Licensee could have (but did
e not) make its position known in opposing intervenor's attempt to get Commission review on the disqualification of its se-curity plan witness. EI Licensee might also have invoked the 82.758 and urged that the procedures available under 10 C.F.R.
rule be waived or an exception made for it and the security And of course i
plan issues not be considered in this case.
licensee could have asked us -- or the Commission itself -- to 10 C.F.R. 52.785(d).1E/
take up the issue by " certification."
No doubt there are other means by which licensee could have brought the substance of its position to the Commission's attention.11/
Its own failure to have invoked any of them in the intervening years may not now be used to bolster its need for Commission review.
m..
Neither has licensee shown that it will be irreparably injured if a stay is not granted.
The only information cur-
~
rently scheduled for release to intervenor. is a sanitized version of the security plan -- one with the details of its CLI-79-1,.9 NRC 1 (1979).
_9/
- See, e.g.,
See, e.g., Public Service Co. of Oklahoma (Black Fox
~
'-~
10/
Station, Units 1 and 2), ALAB-573,10 NRC 775, 790 (1978), certification granted, CLI-80-3,11 NRC
~
(February 20, 1980).
11/
E. g., 10 C. F. R. 52.771 (petition for reconsideration),
10 C.F.R. 82.802 (petition for rulemaking).
19 -
operation excised by the staff with the assistance of licensee itself.
Moreover, even that document will not be allowed to leave licensee's own prendses (see affidavit of non-disclosure, infra, para. 4).
And access to the sanitized plan will be given only to intervenor's counsel, under protective order, who have sworn not to disclose its contents -- even to their cli-ent.
Intervenor's expert witness -- Chief Taylor -- would be under similar restraints.
There b,as been no showing that coun-sel will not comply with our order or abide his oath (in the case of Mr. Jones, that assertion was not even made).
In the totality of circumstances, we perceive no likelihood of injury, I
much less irreparable injury, to licensee by allowing the limited access to the security plan now proper in the orderly i
course of this litigation.
j
.= u-.
=:.
Lw=La u=-. b= G =... : -
)
The granting of a stay, on the other hand, will work a hardship on intervenor.
Whether one agrees with its position or not, it is to be recognized that intervenor has legitimately invoked the appropriate Commission procedures in an effort to have the Diablo Canyon security plan reviewed by others than l
those who drafted and approved it initially.
Its attempt to get that review has been opposed at every opportunity by the licensee, which has every right to do so.
But intervenor is
. a public organization with limited funds; it cannot be expected to bear the burdens of litigation indefinitely.
Another delay will be a hardship on it that is, in our judgment, not neces-sary.
Finally, where does the public interest lie?
If the ade-quacy of licensee's security plan is properly at issue here, then the public interest is served best by moving forward with this proceeding as swiftly as, circumstances and fairness permit.
Intervenor has now obtained a witness whose expertise in se-curity matters of this kind appears to be unquestioned.
His review of the plan will be helpful, if not in improving the licensee's security arrangements, then certainly in assuring that its plan is in f act a good one.
Moreover, it is to be borne in mind that licensee is pressing for antoparating li- -
'2~'
conse for the Diablo Canyon facility, one unit of which i's nearly completed.
That license may not be authorized pending review and approval of its security plan.
A stay of these pro-ceedings -- the practical effect of denying intervenor access to the sanitized plan -- will mean that the security plan issue will be "in the critical path."
(Certain other issues are also open.)
We neither express nor intimate any opinion on whether the plant should or should not receive an operating license.
e
But we think it not in the public interest to delay this pro-ceeding to allow time for review of the sort of question li-censee seeks to raise before the Commission very belatedly and for a second time.
There must be some end to litigation.
At this juncture we note that our foregoing discussion was pref aced with the remark (p. 20), "If the adequacy of li-censee's securi~cy plan is properly at issue here, * * *."
Dr. Johnson reiterates that his view of intervenor participa-tion in security plan hearings has not changed from that ex-pressed in conjunction with Dr. Quarles in their concurrence in ALAB-410.
In that concurrence they stated "had the regula-tions and precedents favoring (intervenor participation] not been so clearly drawn,.we would have:found-that nuclear power.
plant site security plans should not be disclosed in the hear-ing process."
5 NRC a,t 1407.
10.
Final Order on release of security plan.
Notwith-standing our view that no stay is warranted under the govern-ing law and regulations, if by the close of business Monday, April.14, licensee has filed a motion for a stay with the commission, intervenor's counsel will not be given access to the sanitized plan for one week thereafter, i.e.,
until the
i close of business the following Monday, April 21, 1980 12/
)
Unless the Commission or we direct otherwise in the interim, intervenor's counsel shall then be given access to the san-itized version of the security plan in accordance with our
)
protective order and the affidavits of non-disclosure they l
have executed.
We have intentionally left a number j
11.
Other matters.
of other scheduling and procedural matters outstanding until we have had an opportunity to review the staf f's and appli-Once we have cant's version of the sanitized security plan.
reviewed the plan, we will issue a subsequent prehearing order concerning such matters as filing dates (a) for objections to any area of a witness'. expertise; (b) for_ intervenor's amended
~
contentions; and - (c)' for witness testimony.. ::::== --
.:;,- n-;
It is so ORDERID.
FOR THE APPEAL BOARD
~
1 b.1--S b)
C. Jead Bishop
\\
SecreW to the Appeal Board i
At the prehearing conference, we indicated that licensee's 12/
At its j
stay motion should be filed by Friday, April lith.
~-
based on his need to be away from his counsel's request, office on other business, we allowed licensee one extra business day to file its papers with the Commission.
a 1
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD Richard S. Salzman, Chairman Dr. W. Reed Johnson Thomas S. Moore
)
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)
)
)
PROTECTIVE ORDER ON SECURITY PLAN INFORMATION Counsel and witnesses for Intervenor San Luis Obispo Mothers for Peace (Intervenor) who have executed an Affidavit of Non-Disclosure, in the form attached, shall be permitted access to " protected information" upon the following condi-tions:
I 1.
Only Intervenor'e 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)', AIAB-410, 5 NRC 139.8 (1977), and our Order of February 25, 1980 in this pro-ceeding, may have access to protected 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.
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 other purposes.
4.
Counsel and experts shall keep a record of all pro-tected information in their possession and shall account for and deliver teat information to the Commission official desig-nated by this Board in accordance with the Affidavit of Non-i 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 I
information shall be segregated and:
(a) served on lead counsel and the members of this i
Board only; j
(b) served in a heavy, opaque inner envelope bearing the name of the addressee and the statement " PRIVATE.
j l
3-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
=---:=---.
JA% 1 Chairman RicharfSpSal Done at San Luis Obispo, California, this 3rd day of April, 1980.
l
,o UNITED STATES OF A.NERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD
)
In the Matter of
)
)
PACIFIC CAS AND ELECTRIC COMPANY
)
Docket Nos. 50-275 OL
)
50-323 OL (Diablo Canyon Nuclear Power Plant.)
Units 1 and 2)
)
e
)
ATFIDAVIT OF NON-DISCLOSURE being duly sworn, state:
I, 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
.,, ; _ 3._
.. g.. ( ;
thae plan._
, u 2.~,-
(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 enployed by Pacific Cas and Electric Company, the licensee, and authorized by it in accordance with Commission regula-tions to have access to protected inf~ rmation.
o 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
.= -
- e
-2 a
1 information in written form (including any portions of transcripts of in ca cra 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 mes'ns I
without the Appeal Board's express approval or direction.
So long as I possess protected information,1 shall continue to take these 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 protected 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 Pacific Cas and Electric Company.
f (b)
I will keep and safeguard all such material in a safe to be obtained by intervenors at Pacific Cas and Electric Company's expense, after consultation with Pacific Gas and Electric Company and to be located 1
at all times at the above designated location.
(c) Any secretarial work performed at my request or under my supervision
,j vill 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 appr^opriate resume of the secretary's background and experience.
(d) Necessary typing and reproduction equipment will be furnished by Pacific Gas and Electric Company.
(e) All intervenor mailings involving protected information shall be made from the facility furnished by Pacific Gas and Electric Co.
1*
e%,
e
.6 1
Subscribed and sworn to before me this day of April, 1980 h
1 i
i i
i j
9 j
I l
4 l
l 1
i 1