ML20045F009
| ML20045F009 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 08/01/1980 |
| From: | Fitzgerald J NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML20038A409 | List:
|
| References | |
| FOIA-92-436 SECY-A-80-114, NUDOCS 9307060306 | |
| Download: ML20045F009 (32) | |
Text
-
UNilED ST AT ES NUCLEAR REGULATORY COMMISSION WASHIN GTON, 0. C. 80555 y
SECY-A-80-114 Auoust 1,1980 COMMISSIONER ACTION The Commission For:
Frem:
James A.
Fitrgerald Assistant General Counsel ALAB-600 (In the Matter of Pacific Gas and
Subject:
Electric)
Facil g :
Diablo Canyon, Units 1 and 2
~ Review Time _
Eloires:
Augus t 15, 1980 To advise the Cocrnission of an Appeal Board
Purpose:
decision for which review has not been sought D$
~
[and which, in our opinion,~
a In ALAB-600 the Appeal Board decided an issue Discussion:
that an equally divided Commission had remanded to the Board to resolve:
whether individuals who had signed affidavits of non-disclosure could publicly discuss or disseminate protected physical security information gained outside the NRC hearing process without first demonstrating' to the Appeal Board that the information had been obtained from an independent source.
The Appeal Board concluded that its clearance was not required, but that it would rule on individual The Board requests for clearance upon request.
reached this conclusion after the NRC staff, the intervenors and the applicant had filed a joint in their pleading with the Board stating that view no prior clearance should be required.
In accepting the recommendations of the parties, the Appeal Board noted its surprise with the decision of the staff and the applicant to adopt inter-venor's position, in light of the fact that during the prehearing conference they had called for greater restrictions.
COUTACT:
Infcrmtti0n la !Ns rusj tc.s A'ed Trip Rothschild, OGC andam ndh the freeta cf trermaticn I
465 Act,exe.
ns g70 6 930317 7 & B6b GILINSK92-436' PDR
2 The Commission The Board also adopted revised language to be incorporated into the affidavits of non-disclosure intervenor's counsel shoul The Board directed that execute new affidavits of non-disclosure and file In them with the Board no later than July 25.
its order of June 12 (CLI-80-24) the Commission stated that it would not review the Appeal Board's
- ~
decision on'this matter.
El S The Appeal Board also addressed two other matters.
noted Governor Brown's untimely submission of a ;
Itnotice of intent to participate in the physical security hearing and stated that there was no legs!
to the Governor's late entry into the impediment proceeding.
However, the Board asserted that Governor Brown had to take the' proceeding as he and could not challenge rulings that had found it already been issued by the Board or.the Comnissior:
The Governor's counsel will be required to executc' affidavits of non-disclosure before being granted access to the sanitized physical security plan.
Finally, the Board outlined a. schedule for complet:
ing the necessary prehearing procedures and - pro-;
cedures for resolving-disputes regarding how much of the physical security plan should be made i
available to intervenors.
i Recommendation:
Ccw 4 Z
ames A. Fitzgerald -
/
Assistant General Counsel
Enclosure:
ALAB-600 l
l
. Comissioners' co rents should be provided directly to the Office of the Secretary by c.o.b. Friday, Aucust 15, 1980.
Comission Staff Office coments, if any, should be submitted to the Commissicners NLT August 8,1980, with an information copy to the Office of the Secretary.
If the caper is of such a nature that it requires additional time for analytical review and coment, the Commissioners and the Secretariat should be apprised of when coments may be expected.
DISTRIBUTION Comissioners Cemission Staff Offices Secretariat l
s i
~
s UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD Richard S. Salzman, Chairran 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 & 2)
)
)
Mr. Bruce K. Nor ton, Phoenix, Arizona, for the Pacific Gas and Electric Company, applicant.
Mr. Yale I.
Jones, San Francisco, California, for the_ San Luis Obispo Mothers for Peace, in tervenor.
Mr. Herbert H.
Brown, Washington, D.C.,
for the Governor of California.
Messrs. James R. Tourtellotte and William J.
Olmstead for the Nuclear Regulatory Commis-sion staff.
MEMORANDUM AND ORDER July 15, 1980 (ALAB-600)
I.
PROTECTIVE ORDER In our Second Prehearing Conference orderd! we directed 1.
applicant to grant access to a " sanitized" version of the Diablo J/
Order of April 11, 19 8 0, ALAB-59 2, 11 NRC
.: 2
, 4 1
Canyon physical security plan to intervenor's counsel and (potentially) its expert witness, subject to the terms of a protective order which incorporated an " affidavit of non-disclosure."
Clause 8 (b) of that affidavit precluded one given access to the security plan from " publicly discuss [ing) or disclos [ing) any protected information * *
- receive (d) by any means whatever."
Both the applicant and the intervenor sought Commission review, the former contending that no dis-closure of its security plan was warranted and the latter that the protective order was overly restrictive.
On April 21, 1980, the Commission stayed disclosure of the security plan pending its further order.
On June 11, 1980, the Commission denied applicant's petition, reaf firming "that intervenors in Commission proceed-i ings may raise contentions relating to the adequacy of the applicant's proposed physical security arrangements, and that the Commission's regulations, 10 C.F.R. 2.790, contemplate that sensitive information may be turned over to intervenors in NRC proceedings under appropriate protective orders. " CLI-(slip opinion at 2-3).
The Commission 80-24, 11 NRC then directed PG&E to make the sanitized version of the se-curity plan available to the intervenor.
Ibid.
i J
i
. d At the same time, the Commission accepted intervenor's argument that the restrictions on public discussion of_ pro-tected information in clause 8 (b) of the non-disclosure af-fidavit contravened the First Amendment.
Nevertheless, it cautioned that those subject to the protective order are
" prohibited from corroborating the accuracy or inaccuracy of outside info =mation by using protected information gained through the hearing process. "
Id,. at (slip opinion at 4).
The protective order and non-disclosure affidavit 2.
must be modified to reflect the Commission's ruling, but how Chairman we should do so is complicated by a disagreement.
Ahearne and Commissioner Hendrie took the position "that be-fore intervenors publicly disseminate protected information gained outside the hearing process they should be required to establish to the satisf action of * *
- the Appeal Board * *
- the information was in f act gained outside of the hea' ring that process."
11 NRC at (slip opinion at 4).
Commissioners Gilinsky and Bradford, however, were opposed on the ground "that any such c15arance procedure is an unconstitutional prior r e s tra in t. "
Ibid.
(Zne remaining Commissioner -- whose
)
b n
term has since expired -- had voluntarily recused himself.)
In light of this division, the Commission remanded the issue to us with instructions to select one of those options on the basis of our reading of the law and to modify the protec-tive order and non-disclosure affidavit accordingly.
11 NRC at (slip opinion at 4-5).
In response to our request for their views, the staff reported that it, the applicant and the intervenor were all prepared to stipulate (a) that clause 1(a) (2) of the non-disclosure affidavit be amended to define " protected informa-tion" as "information obtained during the course of these proceedings dealing with or describing details of [the se-curity] plan" (new matter underscored); 03) that clause 8 (b) be deleted f rom that af fidavit; and (c) that no further pro-tection of the confidentiality of the security plan was needed. 2/
By letter dated July loth, however, inte rvenor 's counsel advised us that, while intervenor was agreeable to items 03) and (c) of the stipulation as reported by the staff, item (a) did not correspond precisely to his understanding of 2/
Counsel for the staf f informed us by telephone on July 3 that he had spoken to Governor Brown's lead counsel who expressed no objections to the stipulation.
the stipulation.
(Apparently the stipulation was negotiated over the telephone.)
Intervenor's version appears in the margin below.-3/
The disagreement about the precise wording to one side, however, it is evident that the parties have opted for the approach f avored by Commissioners Gilinsky and Bradford.
3.
We are surprised at the applicant's and staff's acquiescence in this position.
At the prehearing conference in San Luis Obispo on April 2nd and in their presentations to the Commission, they argued that f ar greater restrictions were needed to protect the security plan -- arguments that carried the day before us.
Be that as it may, we now f ace a narrower question:
whether those receiving the security plan may publicly dis-cuss protected information without first demonstrating to us 3/
"1.
As used in this Af fidavit of Non-Disclosure (a)
' Protected Information' is (1) any fonn
~~
of the physical security plan for the licensee's Diablo Canyon Nuclear Power Plant, Units 1 and 2; or (2) any infor-mation obtained from applicant or the Commission by virtue of these proceed-ings which is not otherwise a matter of public record and which deals with or describes details of the security plan."
)
(New matter underscored.)
O
I 1 -
that they obtained it outside the hearing process.
Whe ther or not such a demonstration could be required in some circum-stances, II we do not write on a clean slate.
The applicant and staff have performed a volte-face.
They no longer con-tend it necessary to preclude public discussion of protected information before it is shown to come from outside sources.
We do not feel justified in imposing such a restraint on our own initiative.
Therefore, we will modify the non-disclosure af fidavit essentially as the parties suggest.
In this con-nection, however, neither of the suggestions put forward pre-cisely reflect what the Commission's ruling intended.
The version transmitted by the staff is too broadly drawn.
It does not exclude information obtained during the course of the proceeding but outside the hearing process.
On the other hand, we can envision circumstances in which protected informa-tion may be provided to A and not to B.
Intervenor's phrase-
)
ology could be read to permit public disclosure of that
~~4/
For example, such a restraint might be appropriate where (1) the information would likely be classified were it of government rather than private origin; (2) public disclosure could jeopardize the physical security of a nuclear power plant and subject the public to extreme danger; (3) only a very narrow class of individuals would be affected; (4) a prompt administrative remedy
)
subject to judicial review would be available, and (5) there exists no alternative means of protecting the pub-1 lic health and safety less intrusive on the right of public expression.
See, In re Halkin, 598 F.2d 176, 191-9 6' (D.C. Cir. 197 9 ) p. cf.,' Alfred' A 7:n'opf, Tnc. v.
Colby, 509 F.2d 1362, 1375771 (4th Cir. 1975).
i l
i
2 :..-
. a.-
4.
information where B obtained-it from A and not directly "from applicant or the Commission," even though it had been released by virtue of these proceedings.
Without suggesting that this is a likely occurrence, there is no occasion to leave that loophole open.
Accordingly, we will amend the non-disclosure affidavit to conform to the intervenor's suggestion but omit-ting the phrase "from applicant or the Commission."
This should make clear that " protected information" is that pro-vided "by virtue of these proceedings," i.e., pursuant to our order and not otherwise in the public domain.-5/
We think it important, however, to reemphasize the Com-mission's warning:
those subject to the protective order may i
not corroborate the accuracy (or inaccuracy) of outside informa-tion by using protected information gained through the hearing process (see p.
3, supra).
We substitute that caveat for the present clause 8 (b).
Moreover, some elaboration of this caveat is useful.
1 Rumors, gossip and speculation abound and sometimes get into i
print.
It is one thing for a reporter to speculate or guess that something is so or quote an undisclosed source to the 5/
The non-disclosure affidavit is appended to this order in the amended form.
same effect.
It would be quite another, however, for an in-dividual who is known to possess the f acts to repeat what otherwise would be only runor, gossip or speculation.
In the latter instance, his doing so may make his statements corrobo-rative of the actual facts.
This follows because reports from undisclosed and uncertain sources are likely to be treated skeptically, but the same information announced by an individ-ual in a position to know is liable to be credited.
Similarly, receipt of pl atected information may position the recipient to gather and collate from the public domain otherwise useless bits and pieces of information into a repro-duction of the security plan.
In such circumstances, simply the public revelation of the information as a coherent mass q
may corroborate protected information.
These examples are obviously not exhaustive.
But they point up the caution those receiving protected information exercise in making public utterances about the security j
must l
plan for the applicant's f acility.
We therefore stress to
)
those who receive protected information that rumors and gossip from uninformed or unauthorized sources do not neces-sarily mean that protected information has become public knowledge to the extent that they are free to join in dis-cussing it publicly.
Cf., Alfred A. Knopf v. Colby, 509 F.2d i
1362, 1370-71 (4 th Cir. 1975).
We add our caution to the Co= mission's and urge that all privy to the security plan exercise the utmost restraint in discussing its contents lest it be compromised.
And it should be unnecessar7 to remind i
all counsel again of the American Bar Association Canons restricting statements made during the course of an admini-strative proceeding.
See ABA Disciplinary Rule 7-107.
Finally, we note that at the prehearing conference inter-venor's counsel articulated only one objection to a ccmplete ban on discussing protected information.
This was a fear that should the prohibition might somehow handicap their defense, they be' charged with improper disclosure of protected infor-mation.
We do not attempt to judge the reasonableness of that However, a procedure whereby counsel demonstrate concern.
that they obtained protected information outside the hearing (and that their intended public utterances are not process corroborative of it) would serve to shield them against charges of unauthorized disclosure.
We therefore stand ready to rule on whether protected information was in fact obtained from independent sources should counsel wish to submit that question to us.
The Protective Order on Security Plan Information issued April 3,1980, and the form of non-disclosure affidavit are Intervenor's hereby amended and reissued in the form annexed.
counsel should execute new affidavits of non-disclosure and file them with this Board no later than July 25, 1980.
~ II.
PARTICIPATION OF THE G7ERNOR OF CALIFORNIA The Licensing Board rendered its partial initial decision covering security plan issues on September 27, 1979.
The Governor of California later sought leave to intervene before that Board pursucnt to 10 C.F.R. 92. 715 (c) as the representative of "an interested State."
The Board belew admitted the Governor for that purpose on November 16, 1979, with the direction that he "take the proceeding as he finds it."--6/
The Governor did not participate in the appeal of the security plan issues (which we heard in San Francisco on January 22, 1980) or in any of the other proceedings before us that followed in the wake of our February 15th decision on that appeal.
ALAS-580, 11 NRC 227 (1980).
On June 11, 1980, the Governor submitted a notice of his intention to participate in the de novo security plan proceeding we have been conducting.
Notwithstanding the belatedness of his decision to do so, the staff responded on June 25th and the 6/
We understand that the Governor was placed on the service list at that point and his counsel has been receiving copies of the documents filed and issued in this case.
4..
c
- i 5
applicant on July 7th that they had no objection to the Governor's participation provided that no delay resulted therefrom.
There appears to be no legal impediment to the Governor's becondng a party.
However, as is apparent from this memorandum, the Commission's decision in CLI-80-24, supra, and our Second Prehearing Conference Order of April lith (ALA3-592, supra), many matters have been considered and decided since we took up the security plan issues at the beginning of the year.
We note that, in analogous circumstances, the Commission ruled that " allowance of a late intervention need not disrupt established discovery schedules and other prepa-rations for hearing.
A tardy petitioner with no good excuse may be required to take the proceeding as it finds it.
For * * * 'any disadvantage which it might suffer in terms of the opportunity for trial preparation f
would be entirely of its own making.'"
Nuclear Fuel Services, Inc. (West Valley Reprocessing Plant), CLI-75-4, 1 NRC 273, 276 (1975) (on application of a county government to participate).
i
-l 1
l Accordingly, the Governor may participate as the representative of an interested state, "taking the i
proceeding as he finds it"; he may not, however, com-j 1
plain of rulings made or procedural arrangements settled
]
prior to his participation.
Subject to the protective j
order and provided that their non-disclosure affidavits in the form attached are executed and filed with us by July 25, 1980, the Governor's counsel may examine the
" sanitized" security plan to the extent and under the terms and conditions af forded the intervenor's repre-sentatives.
The protective order provisions, including those governing the service of documents containing sensitive material, and the schedule-set forth in part III, below, shall henceforth apply to the Governor as well as to the other parties.
l
III.
FUTUFI PROCEEDINGS Our April 11, 1980 Second Prehearing Conference Order 1
stated that we would issue a schedule for completing the necessary prehearing procedures after we had had an oppor-tunity to review the staff and applicant's version of the saniti:ed security plan.
We did not anticipate, however, l
the long delay between our April order and this one occasioned by the parties' various petitions for review filed with the i
Commission.
Now that the Commission has confirmed that the i
applicant must make the sanitized security plan available to the intervenor it is time to move ahead.
Accordingly, unless modified by subsequent order, the following ti.netable will control the remainder of the prehearing security plan proceedines.
1.
Our April 11 order required that any depositions for the purpose of determining the qualifications of proffered 1
expert witnesses must be completed by April 17, 1980.
Only one deposition, that of Jermiah P. Taylor, has been filed with f
)
us.
i
14 -
Any objection or other motion concerning the qualifi-cations of the expert witnesses shall be filed so that it is in our hands by July 28, 1980.
Any response shall be
)
filed so that it is in our hands by August 4,1980.
We will rule promptly on any motions.
If we find the proffered expert witnesses qualified, the applicant shall then make the sanitized security plan available to the expert witnesses and to those attorneys who have executed and filed appropriate affidavits of non-disclosure.
In the absence of any timely filed objections or motions, all counsel and witness who have executed and filed affidavits-of non-disclosure shall be entitled to access to the sanitized security plan beginning July 30, 1980.
2.
Because the Commission determined that a portion of the af fidavit of non-disclosure previously executed by inter-venor's counsel was overbroad, counsel for all intervening parties must execute new affidavits as provided in part I, above.
3.
Any objections to the sanitized security plan and s
motions for disclosure of additional information must be in our hands by August 11, 1980; responses must be in our hands i
1
by September 2, 1980; and replies in our hands by. September 15, 1980.
All objections, responses, and replies shall follow the
]
procedures and format set forth below, i
(a) Any objection to the sanitized security plan and motion for disclosure of additional information must identify the chapter, page, 1;e c tion, subsection and subject matter of each item of information sought.
The motion shall succinctly state l
the reason why the deleted information is relevant and refer to any applicable section of the Commission's site security regulations.
We recognize that the movant cannot know the precise content of the information sought.
Nevertheless, the index to the sanitized security plan, the I
content of the surrounding information, and the applicant's general description of the deleted information appearing in the plan, when combined with the Com=ission's site security regulations, should enable the movant to state with reasonable specificity why disclosure of the withheld information is necessary.
The applicant and staff should respond to each specific objection by identifying the chapter, page, section, subsection and subject matter of each item of information sought.
As l
t 9
i 1
~
I.
information, the applicant the parties seeking to withhold the and staff shall explain in response to each particular objection:
)
(1) the full nature of the information withheld (without re-l vealing its exact content) ; (2) specifically why in light of the standards of ALAB-410, 5 NRC, 1398, 1405-06 (1977), it should be withheld; (3) the particular manner in which the l
i information could be used to compromise the security plan; in response to movant's objections, why such infor-and (4) to movant and should not be released.
mation is not necessary Assertions that release of any information would compromise the security plan must be supported by af fidavits from know-legeable individuals.
Such affidavits should establish the af fiant's expertise in the subject matter at issue,and explain precisely how the information sought could be used'to compromise the s,curity plan.
e shall then file a reply in the same format as Movant 1
its initial objection and applicant's and staff's responses.
Although the information withheld will still be unknown, g
those responses and accompanying affidavits will enabic the movant to argue the case for disclosure with much All greater particularity than in the initial objection.
assertions that disclosure of particular information is necessary must be supported by affidavits of an expert authorized to examine the sanitized plan.
17 -
such af fidavits must establish the af fiant's expertise
- Again, in the subject matter at issue, explain why the information-withheld is essential, and demonstrate why other information or more general information already disclosed would not. suffice.
i We are cognizant that the procedures set forth are We are also painfully aware of the burden placed burdensome.
upon us in determining what (if any) further information need be included in the sanitized plan, should objections to that But the adversary nature of normal adjudicative plan be filed.
proceedings is necessarily distorted by the movant's ignorance of the withheld information and the usual process for dispute o
resolution will not serve.
The procedures outlined are modelled on those adopted by.the courts for use in analogous circumstances.
They are designed to help us determine what, if any, further information need be disclosed by providing as much illumination of the issues as possible in the circumstances.
- See, e.g.,
Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), certiorari I
denied, 415 U.S. 977 (1974).
Dr. Johnson has suggested an alternative to the fore-(b)
As will be going procedures for the parties' consideration.
it would be less burdensome on all concerned should
- evident, a substantial number of objections to the plan be filed.
Be-cause of obvious legal contraints, however, this suggested alternative is practicable only if all parties are agreeable See 10 to stipulate to it and to be bound by the results.
c r.p.
a?.753.
... - ~. --
4
- is _
Dr. Johnson suggests, in the event objections to the sanitized security plan are filed, that this Board resolve them af ter conf erring in camera with an expert witness named by each party and f ound qualified by us.
In other words, f or purposes of datet rining whether further infor-mation should be made available for use in this proceeding, qualified experts named by the parvies would advise us in camera of their respective opinions concerning the need for each iten of information sought to be disclosed.
Obviously, the "outside" expert witness would have to be given access to each item of withheld information as necessary to fulfill his responsibility to us as an advisor.
Of course, movant's experts would not be permitted to record the in camera advisory conf erence and any notes concerning No counsel the plan would have to be turned over to us.
for any party would be present.
Our decision on this matter would be final and binding on all parties.
C#., The Toledo Edison Company (Davis-Besse Station), ALAB-300, 2 NRC 752, 764-68 (1975).
If the parties accept this alternative, the more burden-some and time consuming procedures we previously outlined in point 3(a) could be avoided and the timetable for concluding i
i l
i 1
the remaining prehearing procedures shortened considerably.
We instruct all counsel to conf er promptly about Dr. Johnson's suggestion and, if it is acceptable, to file an appropriate stipulation, containing any additional details deemed neces-sary by August 4, 1980.
We will make every effort to accom-modate the schedules of the parties' expert witnesses con-1 i
cerning the date and location of such an in camera advisory conference.
If, af ter conf erring, the parties are unable to agree on Dr. Johnson's suggested alternative procedure, they should tell us so promptly and the procedures and timetable previously set f orth will control the proceedings.
However, we will enter-tain suggestions for less burdensome alternative procedures that the parties are able to agree upon if filed by August 4,1980.
4.
In the absence of obj ections to the sanitized plan,
-l amended contentions particularizing the exact aspects of the plan that are being challenged shall be filed no later than August 11, 1980.
If objections are filed, then one week from the date of our order disposing of those objections the applicant shall revise and make available the sanitized plan.
Two weeks thereaf ter amended contentions addressed to the revised plan shall be filed.
~...._ -
5.
At the April 2, 1980 prehearing conference we re-quested that the parties attempt to reach agreement on the order f or presenting direct testimony and the deadlines for filing such testimony.
(Tr. 116-117).
Within seven days of the filing of the amended contentions, the parties shall submit a schedule covering both the timing and order for filing direct testimony, bearing in mind that, in our judgment, more than 30 days for preparing direct testimony would not be appropriate in the circumstances of this case.
If the parties are unable to agree on a schedule by that date, we will set one ourselves.
i 6
All direct testimony shall be filed in question and answer form.
The use of this format should remind counsel j
and their witnesses to avoid broad and general answers to
)
i vague and general questions.
Rather, specific, narrowly drawn
]
questions and precise answers should be the watchword.
Expert witnesses who will present opinion evidence are to be reminded by counsel that they are not advocates.
Rather, such witnesses should retain their prof essional objectivity during cross-examination and during questioning by us.
A witness' views which dif f er from those of his colleagues should be acknowledged with appropriate explanations for those differences.
i
21 -
Once a schedule for filing direct testimony is 7.
established, we vill set the hearing dates for the in camera hearing on the adequacy of the applicant's security plan.
8.
Two final matters.
First, counsel are reminded 1
that any security plan information and similar sensitive material should not be sent through the mail but must be hand-delivered.
/
Counsel attending the April 2, 1980 pre-hearing conference were asked to work out the details for accomplishing hand delivery and to inform us of those procedures. (Tr. 112-114).
By letter dated May 2, 1980, the Secretary to the Appeal Board requested applicant's It was there counsel to take the lead in this matter.
af ter consultation with other counsel, he requested that, a stipulation to govern future service of security submit We still have received no word on the plan materials.
Accordingly, we instruct all counsel to turn their subject.
attention to this matter immediately and file a stipulation 1980, governing the service of documents contain-by July 28, We would prefer an agreed-upon ing protected information.
procedure to one imposed by us, but the absence of an appro-priate stipulation will leave us no choice.
Should an occasion arise where hand-delivery would be too burdensome, mailings containing protected information, at 7/
~~
a minimum, should be made from the facility furnished by the Pacific Gas and Electric Company.
t I
t m
em.,y2
--,y
,,.<w.
y
-. -. -. - -.. ~...
22 -
Second, the admonition contained in our first prehearing order is even more appropriate today:
requests for extensions of time or postponements will be viewed with disfavor; unex-cused delays will not be permitted.
It is so ORDERED.
FOR THE APPEAL BOARD b.
\\hb)
C. Je $ Bishop i
Secret'ary to the Appeal Board
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)
)
)
AMENDED PROTECTIVE ORDER ON SECURITY PLAN INFOPRATION (July 15, 1980)
Counsel and witnesses for_Intervenor San Luis Obispo Mothers for Peace (Intervenor) and for the Governor of California (Governor) who have executed an Affidavit of Non-Disclosure in the form attached, shall be permitted
- /
access to " protected information"-
upon the following conditions:
1.
Only Intervenor's and the Governor'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 subsequent orders
- /
As used in this order, " protected information" has the same meaning as used in the Af fidavit of Non-Disclosure, annexed hereto.
in this proceeding may have access to protected information on a "need to know" basis.
Counsel and experts who receive any protected infor-2.
filed mation (including transcripts of in camera hearings, testimony or any other document that reveals protected infor-shall maintain its confidentiality as required by the mation) annexed Af fidavit of Non-Disclosure, the terms of which are hereby incorporated into this protective order.
3.
Counsel and experts who receive any protected 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.
Counsel and experts shall keep a record of all docu-4.
ments containing protected inforcation in their possession inf ormation to the and shall account for and deliver that Commission of ficial designated by this Board in accordance with the Affidavit of Non-Disclosure that they have executed.
In addition to the requirements specified in -the 5.
Af fidavit of Non-Disclosure, all papers filed in this pro-ceeding (including testimony) that contain any protected information shall be segregated and:
served on lead counsel and the members of this (a)
Board only;
~._
(b) served in a heavy, opaque inner envelope bearing the name of the addressee and the state-ment " PRIVATE. TO BE OPENED BY ADDRESSEE ONLY."
Addressees shall take all necessary precautions to ensure that they alone will open envelopes so marked.
6.
Counsel, experts or any other individual who has reason to suspect that documents containing protected infor-mation may have been lost or misplaced (for example, because an expected paper has not been received) or that protected information has otherwise become available to unauthori::ed persons shall notify this Board promptly of those suspicions' and the reasons for them.
It is so ORDERED.
FOR TES APPEAL BOARD 0.
m%
1
. J Qn Bishop V
C Secretary to the Appeal Board 4
b
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATCMIC SAFETY AND LICENSING APPEAL BOARD
)
In the Matter of
)
)
PACIFIC GAS AND ELECTRIC COMPANY
)
Docket Nos. 50-275
)
50-323 (Diablo Canyon Nuclear Power Plant,
)
Units 1 and 2)
)
)
AMENDED AFFIDAVIT 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 obtained by virtue of these pro-caedings which is not otherwise a matter of public record and which deals with. or describes details of the security plan.
(b)
An " authorized person" is (1) an employee of the Nuclear Regulatory Commission entitled to access to protected information; (2) a person who, at the invi-tation of the Atomic Safety and Licensing Appeal Board
(" Appeal Board"), has executed a copy of this affidavit; i
or (3) a person employed by Pacific Gas and-Electric l
i
. o Company, the licensee, and authorized by it in accordance with Commission regulations 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 pro-cceding.
I will safeguard protected 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 as I possess protected information, I 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 i
a facility in San Francisco to be made available by Pacific
.i
4 Gas and Electric Company.
(b)
I will keep and safeguard all such material in a saf e to be obtained by intervenors at Pacific Gas and Electric Company's expense, af ter consultation with Pacific Gas 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 will be performed at the above location by one secretary of my designation.
I shall furnish Pacific Gas and Electric Company, the Board and staff an appropriate resume of the secretary's background and experience.
(d)
Necessary typing and reproduction equipment will be furnished by Pacific Gas and Electric Company, c
(e)
All mailings by me. involving protected information shall be made from the f acility 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 secretary or other individual who must receive protected inf ormation in 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 affidavit 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.
I shall keep a record of all protected information in
[
7.
my possession, including any copies of that information made by or for me.
At the conclusion of this proceeding, I shall account to the Appeal Board or to a Commission employee desig-nated 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 pro-tected information they contain, but in no event later than the conclusion 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 lif etime of the plant.
~
I make this agreement with the following understandings:
8.
(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 corroborate the accuracy or inaccuracy of information obtained i
outside this proceeding by using protected information gained l
)
through the hearing process.
l l
Subscribed and sworn to before me this day of
, 1980.
i Notary Public
\\