ML20051W723
| ML20051W723 | |
| Person / Time | |
|---|---|
| Site: | 05000142 |
| Issue date: | 05/10/1982 |
| From: | Cormier W CALIFORNIA, UNIV. OF, LOS ANGELES, CA |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8205180131 | |
| Download: ML20051W723 (14) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 9
10 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 11 12 In the Matter of
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Docket No. 50-142 13 THE REGENTS OF THE UNIVERSITY )
(Proposed Renewal of Facility OF CALIFORNI A
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License Number R-71)
"Y (UCLA Research Reactor 15
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16 UNIVERSITY'S RESPONSE TO 17 CBG'S MOTION FOR DEFERRAL 18 19 20 DONALD L.
REIDHAAR GLENN R.
WOODS 21 CHRISTINE HELWICK 590 University Hall 22 2200 University Avenue Berkeley, California 94720 23 Telephone:
(415) 642-2822 24 Attorneys for Applicant 25 THE REGENTS OF THE UNIVERSITY OF CALIFORNIA 26 27 28 1
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As directed by the Board in its Order of April 28, 1982, 2 THE REGENTS OF THE UNIVERSITY OF CALIFORNIA (University) responds 3 to the substance of CBG's Motion of April 23, 1982, as follows.
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I.
INTRODUCTION 6
7 The substance of CBG's motion is that all parties, 8 University and NRC Staff as well as CBG, be required to identify l
9 and qualify those individuals who are to have access to physical.
l 10 security information in this proceeding.
CBG also requested that i
l 11 the Board postpone the time for CBG to submit the identities and 12 qualifications of its proposed experts pending the Board's ruling i
13 on the motion.
14 i
i 15 University objects.
The relief requested by CBG runs 16 counter to the Commission's rules of practice and general discovery 17 procedure, is unnecessary and, in any case, would be ineffectual.
18 Moreover, the motion is based on misrepresentation and innuendo 19 and does not merit serious consideration.
In view of the fact -
j 20 that CBG.is seeking relief, for the first time at this late date, 21 from an order that was issued ten months ago, University must i
22 conclude that the motion has been introduced for the purposes of 23 delay.
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25 Notwithstanding its objection, University would support 26 postponing the qualification of CBG's security experts for the 27 sole purpose of enabling the Board to consider first the NRC Staff l
28 Motion.for Summary Disposition (of Contention XX), dated April 13, i
19814 a
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II.
-DISCUSSION 2
3 A.
CBG's Motion 4
In its July 1, 1981, Order, the Board granted a i
j 5 temporary protective order respecting discovery of physical 6 security information until such time as CBG satisfied certain 7 requirements for the discovery of such information and a permanent
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8 1 protective order could be put in place.
The Board referred 9 specifically to the procedures established in the Diablo Canyon 10 ' proceeding for the discovery of security information.
Pacific 11 Gas and Electric Company, ALAB-410, 5 NRC 1398 (1977) and l
12 !ALAB-529, 11 NRC 744 (1980).
No progress having been made on the
- 3. satisfaction of these requirements, the Board, in its Order of l
14 ! April 16, 1982, directed CBG to file within ten days of the I
15 ! Board's Order its proposed draf t " affidavit of nondisclosure and
- protective order to govern proceedings on Contention XX, along 1G i
17 with'the identification and qualifications of the experts.it 18 wishes to have access to security information, as well as an 19 identification of any attorneys or other representatives whom it 20 also wishes to have access."
21 1
22 CBG responded to the Board's order in two documents:
23 "Intervenor's Memorandum in Support of Proposed Protective' Order 24 Relative to Physical Security Plan Information; and Certain 25 Related Requests" (Memorandum); and "Intervenor's Motion for
'1 26 Deferral of. Identification of Proposed Counsel, Representatives, 27 and Witnesses as to the Physical Security Matter" (Motion for l Deferral).
28 Both documents were mistakenly dated.
CBG subsequently l
l
ljinformed the Board and Parties that the correct date of the P
1982, although the date of service is 2 l documents was April 23, l
3 [unce rtain.
4 Attached to CBG's Memorandum are a proposed " Affidavit 5
l, 6 'of Non-Disclosure" and a proposed " Protective Order," which are 7 ; discussed in the Memorandum briefly, and a proposed " Schedule,"
i 8 which is not explained.
University reserves comment on these 1
0 ! items in accordance with the Board's April 28th Order, which 10 : suspended the time for such responses.
CBG also included in its lMemorandumarequestthatithavetherighttosubstitute 11 l
12 " authorized persons" anytime prior to hearing.
This specific 13 request is related to the substance of the CBG motion and '.s 14 discussed below.
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16 The substance of CBG's Motion for Deferral (which is 17 further explained in CBG's Memorandum) is that the Board should 18 require all parties, University and NRC Staff as well as CBG, to 19 " identify (and qualify) proposed experts and other ' authorized 20 persons' and execute affidavits of non-disclosure" before access 21 to any security information under CBG's proposed protective order 22 is permitted (Memorandum,
- p. 3).
CBG claims to find support for 23 its motion in the " fundamental principles of fairness i
24 -l equity.
and due process," certain wholly speculative and l
25 iirrclevant claims that University and NRC Staff have been remiss 26 in the " protection of.
information Intervenor believes to 27 be sensitive," and certain vague and insubstantial claims that l
28 'CBG intends to introduce information on how the reactor can be I i
l I !'s abo taged, which allegedly sensitive security information Univer-il2llsity and NRC Staff cannot be trusted not to disclose.
3 4,B.
CBG's Motion is Contrary to Commission's Rules of Practice 5l CBG's badly reasoned motion can be interpreted as l
6 seeking to impose protections for safeguards information that has 7 always been in the custody of University and NRC Staf f.
- Indeed, 8(it io precisely this information respecting which CBG is seeking 9 discovery.
The discovery rules do not permit one party to a 10 ' proceeding to use a protective order to restrict another party's 11 !use of information rightfully in its possession.
The Commission's i
12 ! general provisions governing discovery are explicit on this point.
13 Motions for protective orders acce permitted to be made only "by a 14 party or the person from whom discovery is sought."
10 C.F.R.
i 15 Sec. 2.740(c).
Accordingly, only University or NRC Staff is 16 Jentitled to seek protection from disclosure of security informa-17, tion related to University's facility.
In the instant matter, it 18 is University that is seeking protection, not from its own 10 ' employees nor from employees of NRC, but, as it is privileged to 20<do, from CBG, its representatives and all others who are 21 collaborating with CBG.
Certainly there is no equitable principle 22 that would suggest that an adverse party in litigation cannot be 23 so singled out.
24 25 Furthermore, CBG's professed concern for the handling 2G lof "information" on how radiological sabotage of the reactor 27 "could be accomplished is nonsense.
University is not seeking the 1
28 ' disclosure of any such information.
More to the point, such
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1 information is not entitled to protection.
CBG's speculations on 2
the possibilities of sabotage do not qualify as safeguards 3
information under 10 C.F.R. Sec. 2.790(d) and, as a result, are j
4 not entitled to the special protections established in the Diablo 5 Canyon proceeding.
University also notes that in light of the 6 publicity CBG has managed for its sabotage claims, its avowed 7
interest in the secrecy of such information rings particularly 8
hollow.
9 10 C.
The Relief Requested is Unnecessary i
11 CBG claims that unless all parties are required to 12 identify and qualify their proposed " authorized persons" 13 safeguards information cannot be adequately protected.
That 14 claim lacks merit.
Both University and NRC Staff are bound by l
15 the requirements for the protection of safeguards information 16 contained in 10 C.F.R.
Sec. 73.21.
University is accountable 17 to the Commission in an enforcement action for any failure to i
18 comply with the information regulations.
It would be a meaning-19 less cxercise to require, in addition, that University employees 20 execute affidavits of non-disclosure.
The protective order and 21 non-disclosure affidavit procedures are properly directed to 22 third parties who are not otherwise bound by Commission 23 regulations.
i 24 In support of its claims, CBG points to instances when University and NRC Staff have supposedly not acted to protect
" sensitive security information."
CBG's examples miss the mark.
i Noncof the supposed inadvertent revelations concerns sensitive 8
security information.
As one example, CBG claims that although
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'l 14 University requested protection (University March 23, 1982 l2 protective order request) from revealing " sensitive security
! information" related to the third floor equipment room interlock, 3
4 University has discussed the interlock during tours of the 5
facility.
First of all, University never claimed that the matter Gl concerned " sensitive security information".
Secondly, the fact 7
that the third floor equipment room is interlocked does not 8
raise a security issue (it is interlocked as a health safety D' precaution).
University objected to answering CBG's 10 interrogatory on the interlock solely to avoid having to explain
- the precise nature of the interlocking mechanism which is related 11 12 'to an aspect of the security system.
13 14 1
As its second example, CBG points to the meeting 15' minutes which University inadvertently permitted CBG to view but 16 then requested protection from having to produce.
Contrary to 17 CBG's assertion, University never claimed that the minutes 18 contained " sensitive security information."
In its request for 19 protection University merely stated that "the minutes discussed 20 a proposal to upgrade the security system for the facility with 21 certain modifications."
In fact, the modifications discussed 22 were never implemented and the entire discussion has little 23' current relevance.
However, because of the possibility that 24 inferences could be drawn from those minutes about the currently 25 existing security system, University, acting cautiously, decided 26 not to permit the minutes to be photocopied.
As CBG itself 27 states in its motion (Memorandum, page 5) :
"No harm (is) done 28 by being cautions."
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1 As its last example, CBG complains that although Univer-2 sity is requesting protection pertaining to the release of certain 3 photographs of the facility, no measures are taken during public.
4 4-tours of the facility to prevent members of the public "from 5 viewing what the camera viewed."
This complaint is a sham.
In 6 another context CBG has argued for unconditional release of i
7 facility photographs; here CB'G seems to be claiming that'in the 8 interests of proper security not only should photographing be 9 restricted but public tours should be prohibited.
University has
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10 discussed this particular security concern elsewhere and need i
11 only point out here that photographs represent permanent records 12 !of the facility and its equipment.
Once photographic records l
l 13 :are mado public,. University is powerless to control who gets i
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. access to security information about the facility.
CBG's 15 remaining allegations concern vague, frivolous and baseless 16 ' speculations which do not require direct response.
17 18 D.
The Relief Requested Would Be Ineffectual 19 j.
In addition to being unnecessary, the measure proposed 20 in CBG's motion would have no practical effect.
University's 21 employees and, presumably, NRC Staff employees, with an establish-22 ed "need to know" are already privy to all the safeguards.
j 23 information relat6d to University's facility that might be 24 considered in this proceeding.
The Board's sole sanction for f
25 an individual's failure to execute an appropriate affidavit of 26 l on-disclosure is to preclude disclosure of the information. to 27 that individual.
However, University and NRC Staff employees l
I 28 would have no need to execute affidavits of.non-disclosure l-
'since they already have access to that information.
- Moreover, n
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if applied to University and NRC Staff employees such affidavits
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would, as a practical matter, be unenforceable because of the a
3 impossibility of distinguishing previously-acquired from after-4 acquired information.
As applied to University and NRC Staff 5
employees, the procedures provide no new sanctions beyond those l
6 that are already available under the Commission's regulations.
7 8
More importantly, CBG has made no showing that i
9 University or NRC Staff is likely to disclose safeguards informa-l 10 tion or call public attention to sensitive security matters.
In l
11 fact, the situation is quite the reverse.
Throughout this 12 proceeding it has been CBG who has sought the widest possible 13 public discussion of certain sensitive security matters, including 14 the type and quantity of the fuel used at the facility and its 15 unsupported claims about the vulnerability of the facility to 1G sabotage.
CBG's claim that it is the only party to this proceed-17 ing that can be trusted to prevent the disclosure of safeguards 18' information is ludicrous.
CBG's interests are self-evident and 19 in conflict with University's legitimate interests in protecting 20 its safeguards information.
University submits that CBG's 21 Motion for Deferral has been introduced not for its stated 22 purpose but for purposes of delay.
23 24 CBG's Claim to a Right to Modify its List of " Authorized E.
Persons" 25 Related to CBG's motion is its request that it be 26 permitted to modify its list of " authorized persons.
27 so long as no substantial delay results."
The request is 7g premature but, in any case, it has little to recommend it.
.Ihr.-
l 1 Ithe time this matter is likely to be resolved a year will have j
2 passed since CBG was first directed to identify and qualify its i
3 security experts.
Any further delay at this point will be sub-4 stantial.
For each proposed expert or representative University 5 intends to exercise its right to examine the individual respecting i
6 his or her qualifications.
If substitutions are made the 7 additional examinations will cause unnecessary delay and needless 8 expense.
Moreover, any procedure that would~ result in more 9 individuals having access to safeguards information than are 10 absolutely necessary is suspect and should be rejected.
If j
11 unusual and unforeseeable circumstances argue for a substitution, j
12 the Board can consider the matter at the time it arises.
Univer-l 13 :sity submits that an unwillingness to proceed under Diablo l Canyon-type protections or an inability to commit to 14 remaining
}=throughoutthesecuritycontentionproceedingareinsufficient 15 16 reasons for proposing substitutions.
If.CBG's experts or 17 attorneys do not'like the rules or cannot commit to remaiving
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18 their names should not be offered in the first place for the
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10. security contention part of the proceeding.
1 20 21 University has a specific concern related to the i
22 participation of CBG's rotating panel of attorneys in this l proceeding that goes'beyond the adjudication of the security 23 l contention.
24 Throughout this proceeding CBG has been advised and 25 epresented by attorneys of the Nuclear Law Center (NLC) in Los a
26 ngeles.
At discovery conferences which have occurred during the i
27 ast year, University has dealt with four different NLC attorneys.
28, Currently, however, none of the NLC attorneys has entered.a notice Iof appearance in the proceeding.
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If CBG intends to proceed in propria persona it ought to I
2 so state.
CBG has probably been advised and certainly is aware 3 of the advantages of proceeding without formal counsel, including 4 the very lenient standards that are applied to its pleadings.
5 However, the arrangement being proposed by CBG, especially as it i
G relates to disposition of security contention matters, is simply i
7 unacceptable.
The arrangement being proposed would permit CBG's 8 attorneys to drop in and out of the proceeding as it suits them 9 and CBG, without otherwise requiring that CBG's attorneys take 10 any responsibility for CBG's pleadings and participation in the i
11. proceedings.
Of course, under the ethical standards that govern lthe legal profession such an arrangement cannot be excused solely 12 13,on the grounds that an attorney is appearing pro bono publico.
I 14 CBG's attorneys may enter an appearance and, if it becomes 15 :necessary, they may ask tc withdraw.
16 17 If CBG intends to be represented by attorneys of the 18 NLC or if it expects any of the parties to continue to deal 19 directly with its attorneys, CBG ought to be required to cause 20 its attorneys to enter notices of appearance in the proceeding.
21 Certainly, with respect to adjudication of the security contention, 22 no attorney who has not formally noticed his or her appearance l
23 ought to be permitted to participate in the proceeding.
- Moreover, 24 any such attorney who does appear ought to be required to commit l.to remaining until the security contention is resolved.
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1 III.
ALTERNATIVE REMEDY 2;
I 3l According to the standards established in the Diablo 4 ' Canyon proceeding, before the Board can permit disclosure of any 5 safeguards information CBG must demonstrate that the particular G information requested is relevant to its security contention.
7 1 Pacific Gas and Electric Company, ALAB-410, 5 NRC 1398 (1977),
I8:at par.
- 3. (1).
CBG has made no showing that the security plan or 9 any other specific item of information is relevant to its security 10 contention.
Indeed, the NRC Staff Motion for Summary Disposition 11 ;(S taf f 's Motion), dated April 13, 1981, demonstrates that CBG's i
12 contention is really an attack upon the NRC's safeguards regula-13 tions.
CBG's contention amounts to a cla;m that the safeguards 14 standards applicable to power reactor facilities ought to be made i
' applicable to University's research reactor facility.
None of the 15 l
16 ' security information which University has withheld from disclosure 17 lis relevant to the full and fair consideration of CBG's claim.
18 19 University requests that the Board defer the identifica-20 tion and qualification of CBG's security contention experts for the 21 ' ole of considering Staff's Motion, at least to the extent needed p
}to determine whether any material facts 22 remain in dispute and 23w!
hether discovery of security information is necessary to resolve 24lsuch disputes.
University discussed this rcquest in its status 11 25 eport of March 15, 1982, and does not intend here to formally 2G hetition the Board for this relief.
University notes, however, 27lif the Board decides,on its own motion, to consider Staf f's I
28 hotion at this time and request that CBG respond to the motion, !
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1.many, if not all, of the security issues will be resolved.
As a l,
2 result, it is likely that the parties can get by with less complex l
3l procedures for the discovery of security information relevant to 4 the resolution of any remaining issues.
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IV.
CONCLUSION 7
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For the reasons discussed above, University requests that l
9 the Board deny CBG's Motion for Deferral or, as a preferred I
10 alternative, agree to defer the identification and qualification 11 of experts until the NRC Staff Motion for Summary Disposition is 12 resolved.
As a related matter, in the event that the Board denics i
13 CBG's motion and orders ~that CBG submit forthwith the identities 14 and qualifications of its experts, University requests that CBG l
15 be required to limit its submission to the minimum number of 16 individuals necessary to a fair consideration of the security 17 contention and that each of those individuals express a commitment J
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18 to remain until the security contention is resolved.
1 19 20 Dated:
May 10, 1982 21 i
i 22 DONALD L.
REIDHAAR GLENN R.
WOODS 23 CHRISTINE HELWICK i
24 25 by William'H. Cormier 26 UCLA Representative 27 THE REGENTS OF THE UNIVERSITY OF CALIFORNIA 28 l
I UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 2
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 3
In the Matter of
)
4
)
Docket No. 50-142 THE REGENTS OF THE UNIVERSITY
)
(Proposed Renewal of Facility 5
op CALIFORNIA
)
License Number R-71)
.)
l 6-(UCLA Research Reactor)
)
)
7 8
CERTIFICATE OF SERVICE 9
d I hereby certify that copies of the attached: UNIVERSITY'S 10 RESPONSE TO CBG'S MOTION FOR DEFERRAL 11 in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, 12 postage prepaid, addressed as indicated, on this date: MAY 10,1982 13 14 John H.
Frye, III, Chairman Mr. Daniel Hirsch Administrative Judge Cte. to Bridge the Gap 15 ATOMIC SAFETY AND LICENSING BOARD 1637 Butler Avenue, #203 U.S. Nuclear Regulatory Commission Los Angeles, Calif.
90025 16 Washington, D.C.
20555 Mr. John Bay, Esq.
17 Dr. Emmeth A. Luebke 3755 Divisadero #203 Administrative Judge San Francisco, CA 94123 18 ATOMIC SAFETY AND LICENSING BOARD U.S. Nuclear Regulatory Commission Mr. Daniel Hirsch 19 Washington, D.C.
20555 Box 1186 Ben Lomond, CA 95005 20 Dr. Oscar H.
Paris Administrative Judge 21 ATOMIC SAFETY AND LICENSING BOARD U.S. Nuclear Regulatory Commission Nuclear Law Center 22 Washington, D.C.
20555 c/o Dorothy Thompson 6300 Wilshire Blvd. 11200 23 Counsel for the NRC Staff Los Angeles, CA 90048 OFFICE OF THE EXECUTIVE LEGAL DIRECTOR 24 U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Chief, Docketing and Service Section 26 OFFICE OF THE SECRETARY U.S. Nuclear Regulatory Commission 27 Washington, D.C.
20555 p
28 WILLIAM H. CORMIER UCLA Representative I
THE REGENTS OF THE UNIVERSITY OF CALIFORNIA
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