ML20045E831
| ML20045E831 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 05/13/1980 |
| From: | Bickwit L NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML20038A409 | List:
|
| References | |
| FOIA-92-436 SECY-A-80-057A, SECY-A-80-57A, NUDOCS 9307060110 | |
| Download: ML20045E831 (10) | |
Text
UNITED $TAf ts
.[
NUCLEAR REGULATORY CoMMI55 TON y
ApJUDICATORY ITEM 4
CONSENT CALEND AR ITEM May 13,1980 SECY-A-80-5?A 4
To:
The Commission From:
Leonard Bickwit, Jr., General Counsel
Subject:
Diablo Canyon--Release of Physical Security Plan to Intervenors
Purpose:
b Discussion:
On April 11, 1980, the Appeal Board issued a Second Prehearing Conference Order directing that intervenor, San Luis Obispo Mothers for Peace... be provided access to a sanitized version of the Diablo Canyon security-plan.-- The-Board directed-that the plan be-released to intervenor's-counsel w
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and expert witn'esY ~~~ ' 'a forme'r.Dep'uty Chief: of ~~
Police for San Frah'c~isco' ' under the terms'of a.~
protective order and upon execution by these individuals of an affidavit of non-disclosure.
Under the terms of the protective order the only individuals who would have access to the sanitized plan would be intervenor's counsel (Andrew Balduin and Yale Jones), its expert witness (Jerome Taylor) and one secretary (who would ty?e intervenor's pleadings).
Before receiving the sanitized plan these individuals would be rec.uired to sign an affi-davit of non-disclosure provic.ing that they
-could not disclose protected information that had not been previously discussed'in the public portions of the hearing to anyone-except_: (1) one another:
(2) NRC employeesi and -(3) - designated PG&E officials.
It also provides that they could review protected information only at a PGEE office in San Franciscos that the information could not'be taken from that 9307060110 930317 office; and that all protected information would be bNINS b-436 kept in a safe provided by PGEE.
All secretarial PDR Information in this record m3 heted CONTACT:
in accordance with the Free:'cm cf In'umation Trip Rothschild, OGC 4-1465 Act, cxempticas '
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The Commission' 2
.c work would also be performed-at this location.
Thel protected information could be used only for purpose
of the proceeding and at the conclusion of the pro-ceeding all protected information, including notes taken.h.y intervenors, would be turned over to the
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t'Ee af fiin~t '
'"iiill'~not ibblicl~y~dfWtusof 'dGet$se any protected information that I receive by'any means whatever".
At the prehearing conference the' Board denied applicant's motion to stay the. release of the plan to intervenor,-but in its April-11, 1980_ order, directed that the plan not be turned over to intervenor until' April 22,'1980, permitting Pacific Gas and Electric (PG&E)-the opportunity 1to seekt a stay of the Appeal Board's order from'the Commis sion.
On April-14, 1980, PG&E filed.a motion with the Commission seeking a s y and a petition seeking review of the order.
Ths~NRC: staff"and inGifv~ehor fili 6 motions WitTrthe Commiss. ion opposin PG&E's requests.'AOn Aprd.1.21., 1980,, the Commissiona issued an order. directing stha.t 'the:.. san $tiz~ed.,,m
.<-4 physical security plan not'le turned over'to th'?-7 1
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e intervenor unless and until the Commission so directed.
This order-provided the Commission with:
an opportunity to examine the matter.
Thereafter, on April 23, intervenor filed a motion seeking a stay.of'the-Board's Order and petitioning.
the Commission to review the matter.
Intervenor objects to the provision of the affidavit of non-disclosure which would preclude counsel and their expert witness from publicly disclosing or discus-sing protected information obtained by means other than their review of the sanitized physical security plan and participation in the-Commission proceeding.- The NRC staff and PG&E filed pleadings 1 opposing'intervenor's petition.
Factual Background As one of the grounds on which it' opposes issuance of the Diablo Canyon operatingD11 cense.intervenor claims that the plant is vulnerable to-sabotage 1
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The Commission 3
h from land and sea.
In 1974, the Licensing Board accepted this contention and in 1975 intervenor filed a discovery request seeking access to, among other items, the facility's security plan.
The Licensing Board in 1976 denied a PG&E motion requesting that no discovery relative to the security plan be permitted, and outlined procedures which would be followed to protect against public dissemination of the information contained in the plan.
At PG&E's request the Ap7eal Board reviewed' the matter on an interlocutory basis.
In ALAB-410, 5 URC 1398 (1977), the Appeal Board held that the Commission's regulations regarding the dissemina-tion of proprietary information, 10 CFR 2.790, do not permit what the applicant requested -- the refusal on a generic basis to permit inspection by intervenors of site security plans.
The Board noted, however, that security plans are indeed sensitive and are not to be made available to the public at large.
In determining who should have access to physical security plans the Board established several guidelines:
(1) the plan's relevancy must be demonstrated by the party requesting access to the plan.
In this context, only those portions of the plan which an intervenor can demonstrate.are-relevant to its' contentions._;,
should be provided.
Consistent.with this standard, as few of the " gory. details" as possible are tio -be.
released; (2) if portions of.the plan are released, they should be released subject to a protective order.
In considering whether to provide them, a naterial consideration will be whether the recip-ient of this infornation is likely to abide by such an orders and (3) a security plan should not be released to a witness who lacks relevant expertise for evaluating it.
In applying these principles to the Licensing Board order directing release of the material, the Appeal Board suggested that the Licensing Board revise its proposed protective order and provide only a " sanitized version" of the plan.
It also suggested that the number of locations at which the intervenor may examine the plan should be limited and that consideration should be given to preclud-ing the copying or taking notes about any portions of the plan.
It stressed that the plan should he released only to intervenor's counsel and qualified experts selected by intervenors.
Finally, it g
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The Commission 4
stated that if a proposed expert's qualifications are challenged, the intervenors must prove that the expert is qualified to evaluate each section of the plan that is to be reviewed by him or her.
Although the Appeal Board's decision was unanimous, two members of the Board, Drs. Johnson and Quarles,
issued separate statements.
They indicated that they joined in the opinion because they were persuaded that the Commission's regulations required that portions of a physical security plan be made available under specific conditions to intervenor's counsel and qualified expert witnesses.
Neverthe-less, they stressed that they were disturbed by this result and "had the regulations and precedents-favoring it not been so clearly drawn, we would have found that nuclear-power plant site security plans should not be disclosed in the hearing process."
PG&E sought Commission review of the decision.
In response, the Commission issued an order stating that it would not review ALAB-410, but noted that "the prospect of even limited disclosure of physical security plans for nuclear facilities poses serious and difficult questions."
The Com-
~ he Licensing Board should mission then notid~th~at t
be given the opportunity..to. implement ALAB,410 and that the ~ Board's decision Nould be subject
,J to review by the Appeal Board and the Commission.
CLI-7 7-23, 6 NRC 455 (1977).
On remand intervenor indicated that David Comey would be its expert witness.
The Licensing Board found him to be unqualified.
The Appeal Board refused to review this finding on an interlocutory basis.
ALAB-514, 8 NRC 697 (1978).
Before the time for Commission review of the Appeal Board order expired, Dr.
Coney died, nooting out the question,of his, qualifications.
Ab
--The Licensing Board nonetheless decided to heat evidence on the. matter.
It toured the facility and in an in camera session, heard evidence; presented by the NRC staff and PG&E.
The Board issued a partial initial decision in September of 1979 in which it found the physical security
The Commission 5
plan satisfied 11RC regulations.
LBP-79-26, 10 FRC 453.
In reviewing the Licensing Board's decision, the Appeal Board discovered that the Licensing coard had relied on secondary evidence and had not reviewed the actual physical security plan.
It stated that there was no substitute for reviewing this document and vacated the Board's findines.
Rather than remanding the matter back to the ~
Licensing Board for further hearings, the Appeal Board decided to conduct de novo proceedings.
See ALAB-580, 11 !!RC (198IlT.~' tee Appeal Board invited intervenor to participate in its hearing if it could satisfy the terms of ALAB-410 --
namely, if it could find a qualified expert witness.
Intervenor found a former deputy police chief for the City of San Francisco to serve as its expert witness.
On April 2, 1980, the Appeal Board held a prehearing confer.ence, and on April 11 issued the order described earlier directing that the sanitized version of the physical security plan be turned over to intervenors.
Must the Plan.be Disclosed to-Intervenor?,;,-- ;,_,
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m.; -.. i PG6Fconsidersdikclosureofevenaportionof the security plan to be a matter of grave concern.
It believes that the terms set forth in the Appea.1 Board's protective order and the affidavits of non-disclosure may narrow the chance of disclosure, but do not eliminate it, PG&E argues that dis-closure raises major policy issues which the Commission should address.
{1 t is OGC's view that I
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9 In the Diablo Canyon proceeding, intervenor San Luis Obispo Mothers for Peace has been admitted as a party to the proceeding.
Intervenor contends that there may not be adeouate provisions to. guard
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against domestic sabotage of the facility and seeks h access to the applicant s security plan.- Under the s
Commission's regulations, a party may obtain access l
to any information which is a mart of the utility's
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application or the record of t1e proceeding.
There are two exceptions to this rule of unrestricted access:
(1) national security information and/or restricted data and (2) proprietary information.
However, in both cases, Commission rules provide fori limited disclosure of the information to-a party.
10 CFR 2.900 et seq.
(Subpart I -- Special Pro-cedures Applicable to Adjudicatory Proceedings b
Involving Res tyLcted.pa.ta. gad /pr. llational. Security.
Information): 10. CFR 2. 79 0(b) (.6_L(Inspection. of - ~ n,.
proprietary information ;by partiek.Iom.proceedingm
,under a protective order).
%By virtue of 10 CFR.5 2.790(d)(1), reactor physical security plans are regarded as "commer-cial or financial information", thus enjoying some privilege from complete or unqualified public disclosure. 1/
This permits the informa-tion to he defined as proprietary information and withholdable from public disclosure on that basis under the Freedom of Information Act.
See Porter County Chapter of the Iraak'Ualton League
~
- v. AEC, 380 f. Supp. 630 (11.D. Ind. 19 74). '-
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The Commis sion 9
Should the Terms of the Affidav4.t of 1:on-Disclosure be Altered?
Intervenor's counsel, ik. Jones and tk. Baldwin, have both executed the affidavit of non-disclosure but noted in doing so that they reserved the right to appeal its terms.
On April 23, 1980, they.
filed a petition seeking review of the Board's order claiming that the affidavit of non-disclosure was unconstitutional in two respects:
(1) it purports to prevent disclosure of information obtained outside the course of this proceeding, and (2) it purports to prevent disclosure of information which has been the subject of this proceeding but nevertheless by some other means reaches the public domain.
The Appeal Board in its April 11 order had con-sidered, but rejected, intervenor's arguments.
It noted that the security plan contains very sensi-tive information and1that severe consequences to the public safety may result from its compromise.
Accordingly, it' believe'd that the> wisest -course-was to avoid any questions. which aight. ari'se ;oc 4.
concerning whether ' security plan'information from...
another source is similar or identical to that previously disclosed'under the protective order.=
It stressed that the limitation on disclosure has been narrowly drawn and runs only to counsel and the expert witness.
Under the Board's Drder, if other members of Mothers for Peace acquire protected information from independent sources, these members would be free to disclose that information.
The Board also asserted that dis-closure of protected information no matter how obtained would not advance intervenor's proferred purpose of increasing the plant's protection from industrial sabotage.
Finally, it indicated that if intervenor's counsel should obtain protected information from an outside source, nothing in the protective order or affidavit of non-disclosure precludes them from bringing the matter to the Board's attention. The Board would consider requests.
for reconsideration based on specific factual i
situations.
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.l The Comission 10 The liRC staff and PG&E both oppose' ~intervenor 's petition for review, arguing that ~ the Appeal' Board's approach is sound. #
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The Commission 11 o
1 Recommendation:
Coordination:
1" l
s _-.__ s s.s.
Leonard Bickwit, Jr.
General Counsel
Attachment:
Draft order
Commissioners' comments or consent should be provided directly to the Office of the Secretary by c.o.b. Wednesday, May 21, 1980.
Commission Staff Office comments, if any, should be submitted to the Commissioners 19, 1980, with an information copy to the Office of the Secretary.
If the NLT May paper is of such a nature that it requires additional time for analytical review and comment, the Commissioners and the Secretariat should be apprised of when comments may be expected.
This paper is tentatively scheduled for affirmation at an Open meeting at the earliest practicable date.
DISTRIBUTION Commissioners Commission Staff Offices Secretariat ch g g. t\\
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