ML20054F734
| ML20054F734 | |
| Person / Time | |
|---|---|
| Site: | Catawba  |
| Issue date: | 06/11/1982 |
| From: | Johnson G NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8206170263 | |
| Download: ML20054F734 (15) | |
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6/11/82 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of DUKE POWER COMPANY, ET AL. ) Docket Nos. 50-413 e
) 50-414 (Catawba Nuclear Station, ) 3 Units 1 and 2) )
NRC STAFF'S RESPONSE TO PALMETTO ALLIANCE MOTION REGARDING LITIGATION OF ITS SECURITY CONTENTION I. INTRODUCTION In the Palmetto Alliance Response to Board Questions and Motion Regarding Security Contention No. 23, dated May 10,1982,(Palmetto's Motion), Palmetto Alliance sets out its responses to questions posed to it by the L' censing Board in the Board's April 13, 1982 Order concerning Intervenor's ability and readiness to litigate the adequacy of Applicants' security plan for Catawba under certain protective restrictions. This Palmetto Alliance response, however, also contains a series of objections to Board rulings, Comission safeguards information requirements and Commission procedural rules, as well as requests for relief unrelated to the Board's questions. The NRC Staff believes Palmetto's Motion must be denied in its totality. The two former Duke security workers offered by Palmetto Alliance as potential witnesses do not qualify as " security plan experts" under applicable Comission precedent. Palmetto Alliance's objections to Board rulings on applica-tion of protective measures are both untimely and unsupported by either factual bases or Comission precedent, its challenge to Comission ADO 0$00hh3 MGM 05 Certified By P~
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regulations governing the protection of safeguards information is improper under 10 CFR Section 2.758, and its request for access to the Catawba security plan (notwithstanding its refusal to agree to protective measures) is contrary to Commission regulations and case precedent. Since Palmetto Alliance has failed to agree to Commission f
requirements for obtaining access to facility security plans, its request for occess must be denied. And since Palmetto Alliance concedes that it cannot frame an adequately specific contention without access to the plan, the Board should dismiss Palmetto Alliance's Contention 23.
II. DISCUSSION A. Procedural Background In its March 5,1982 Order relating to the admission of contentions in this proceeding, the Licensing Board noted that, despite the lack of specificity in Palmetto Alliance's Contention 23 challenging the adequacy of Applicants' security plan for Catawba, it could order Applicants to grant Palmetto Alliance access to the plan as "necessary to a proper decision in the proceeding." Id. at 38. Both Applicants and the Staff have objected to this ruling, which is the subject of pending objections i
and certification requests.
Nevertheless, the Board deferred such a decision on the ground that it was not certain Intervenor was aware of the procedural complexity and expense of litigating a security contention. The Board therefore requested Palmetto Alliance to inform the Board "within ten days of receipt of this Order, whether it wishes to gain access to the Catawba l security plan, subject to the kinds of conditions we have indicated."
Id. After receiving an extension of time to respond, Palmetto Alliance l
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ignored the Board's request and simply stated in its reply that it intended to pursue its contention " reserving its right to comment on the appropriateness of further procedures." Palmetto Alliance and Carolina Environmental Study Group Responses and Objections to Order Following Prehearing Conference, March 31, 1982, at 20. Not satisfied with this f
response, the Licensing Board issued an Order on April 13, 1982 which, among other things, directed Palmetto Alliance to answer Board questions on whether it had secured the services of a qualified security plan expert or had plans to secure them (and the qualification of such expert), and whether the protective order entered in the Diablo Canyon casel/ was acceptable. The Board also noted that it "need not reach
[ Applicants' objections to the contention itself] unless and until Palmetto Alliance has obtained the services of a qualified security plan expert acceptable to the Board." April 13, 1982 Order, at 2-3.
After receiving an additional extension of time, Palmetto Alliance responded to the licensing Board's questions. This response consisted of the following: (1) identification of two former McGuire security guards as " qualified security plan expert (s)" based on their " knowledge, training and experience" as security workers at Duke's McGuire Nuclear Station, (2) objection to the requirement that Intervenor obtain the services of "a qualified security plan expert" beyond that provided by the security workers Palmetto has obtained, (3) objection to the terms of the protective order and non-disclosure affidavit attached to the Board's
-1/ Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-592, 11 NRC 744, at 757 (19E0).
March 5,1982 Order insofar as they extend to nondisclosure of information received from sources outside the hearing process, (4) objection to the new Commission regulations governing Protection of Unclassified Safeguards Information, and to receipt of security plan information subject to the restrictions therein imposed, (5) a request i
for the " protection of this Board" for the two former security workers "so they may speak freely", (6) refusal to "be sworn to secrecy" (apparently an allusion to signing of non-disclosure affidavits), (7) request for access to " sanitized" portions of the security plan and related materials
.containing no " safeguards information" or other information protected from public disclosure, and (8) a suggestion that the Board, alternatively, pursue the security issue on its own, with the aid of the two former security workers under its sua sponte authority. Palmetto's Motion requests that the foregoing terms govern litigation of Palmetto's Contention 23. The NRC Staff's position with regard to Palmetto's Motion is set forth below.
B. Palmetto Alliance Has Failed to Satisfy the Board's Requirements to Secure the Services of a Qualified Security Plan Expert Palmetto Alliance appears to have taken the alternative positions either that Messrs. Hines and Poole, former security workers at the McGuire Nuclear Station, or Intervenors themselves possess "the appropriate and necessary expertise to assist the Board and this Intervenor in the litigation of Contention 23...", or that a requirement to obtain the services of a formally qualified security plan expert is objectionable, since such experts are "available solely, as a practical matter, to owners of nuclear plants, by whom they are employed." Palmetto's Motion, at 3-4.
- 1. Palmetto Alliance's Failure to Demonstrate that its " Experts" Are Qualified to Evaluate a Nuclear Facility Security Plan Bars Intervenor Access to the Catawba Plan In order to protect the sensitive infonnation contained ir. plant security plans, the Appeal Board has established guidelines for allowing access to such plans in connection with licensing proceedings. Pacific ,
Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2),
ALAB-410,5NRC1398,1403-1407(1977).2l In addition to limiting access to those portions of the plan which are relevant to intervenor's contentions, and then only subject to a protective order, the Appeal Board in Diablo Canyon stated that access to security plans should be given "only to witnesses who have been shown to possess the technical competence necessary to evaluate the portions of the plan which they may be shown. Any other course would contravene the requirement that access be afforded only to ' persons properly and directly concerned' (10 C.F.R.
% 2.790(b)(6))." Id. at 1404.3/ Moreover, "the party sponsoring a witness
-2/ These guidelines were generally endorsed by the Connission in Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-80-24, 11 NRC 775, 777 (1980), and in its explanation of the recently adopted Commission regulations on Protection of Unclassified Safeguards Information, 46 Fed. Reg. 51718 (October 22, 1981). Moreover, in 10 CFR Section 2.744(e) as therein revised, the Commission expressly provided for use of protective measures "as may be necessary and appropriate to limit the disclosure [of Safeguards Information] to parties ... and to their qualified witnesses and counsel." (Emphasis added) 3f In applying the Appeal Board guidance, the Licensing Board in Diablo Canyon, LBP-78-36, 8 NRC 567, 569 (1978), elaborated on the meaning of " technical ccmpetence", as follows:
We believe that " technical competence" to evaluate the components of a security plan ideally requires practical knowledge flowing from working with the assembly of the " nuts and bolts" etc., of the various components of the security system, at least to the extent of being able to design an overall system. It does not necessarily mean the raw material labor involved, but an intimate, on-the-spot knowledge of the fabrication and assembly of each component.
has the burden of demonstrating his expertise." Id. at 1405.
Palmetto Alliance's demonstration of qualifications of its " experts" is limited to the mere assertion "that the personal kncwledge, training and experience of these former security workers at Duke's McGuire Nuclear Station [ Messrs.HinesandPoole]providestheappropriateandnecessary expertise...." Palmetto Motion at 3. '
Taken at face value, the training, 4
knowledge and experience of the potential witnesses put forward by Intervenor falls short of the sort of qualifications contemplated by the Appeal Board. The fact that these persons may have once been security workers at a nuclear facility indicates nothing more than that they were trained as security workers and had some knowledge of how to implement a security ple1. It does not establish, without more, that they have the technical expertise to evaluate the components of a security plan or the ability to design an overall system. See Diablo Canyon, LBP-78-36, 8 NRC 567, 569. Even assuming the instant individuals have knowledge of breaches in security at McGuire, that fact is irrelevant to whether they are qualified to evaluate a security plan.
In the Staff's view, Palmetto Alliance, which has the burden of demonstrating the qualifications of its experts, has failed to show that it has retained experts properly qualified to review the security plan.
Therefore, under the Diablo Canyon guidelines, and pursuant to 10 CFR Section 2.790(b)(6) and 2.744(e), the Licensing Board should not grant Palmetto Alliance access to the Catawba security plan.
- 2. Palmetto Alliance's Objection to Providing a Qualified Security Plan Expert Must Be Rejected as Unsupported Palmetto Alliance has provided no substantial basis to support its argument that Messrs. Hines and Poole (or Intervenor's " members, staff and
-ga-P counsel") are qualified experts and has made no proposal as to how to '
otherwise obtain an expert. Thus, Palmetto Alliance's response is little more than an objection to the Board's March 5,1982 Order insofar as it made retention of a qualified security plan expert a prerequisite to gaining access to the Catawba security plan.S/
u Palmetto Alliance has provided no basis for its assertion that duly 9
qualified experts are available only to owners of nuclear power plants.
The retention of experts by Intervenors in other proceedings belies such an assertion. See e.g. , Diablo Canyon, ALAB-592,11 NRC 744, at 752 (1980); id., ALAB-410, 5 NRC 1398, at 1404. As noted above, 10 CFR Section 2.790(b)(6) has been interpreted to require use of such an expert and the new Section 2.744(e) incorporates such a requirement.
Yet there is no indication by Palmetto Alliance that they have undertaken any effort to obtain such expert. In these circumstat.as the Board should reject Intervenor's argument that it need not obtain the services of a qualified security expert.
C. Palmetto Alliance May Not Challenge Commission Regulations on Protection of Unclassified Safeguards Information in This Proceeding Palmetto Alliance makes the further objecticn, which is both untimely and improper, that the Commission's regulations on the Protection of Unclassified Safeguards Information "are impermissably vague and overboard (sic), serve to chill the legitimate exercise of free
-4/ Intervenor has offered no reason why it could not have made the same response within ten days of the original directions from the Board, and has offered no basis why its objections could not have been made at the time established by the Board for making objections to its rulings. The Licensing Board would be fully justified in summarily rejecting this objection based upon its untimeliness alone.
speech and the right of petition by intervenors and protect the operators of nuclear power plants more from the ire of an infomed public which learns of their misdeeds than from any real threats to security."
Palmetto's Motion at 4.5_/
Although Intervenor fails to address any particular provisions, the f
objection appears to be directed at 10 CFR Section 2.744(e), which t
requires that when safeguards information is determined by a presiding officer to be "necessary to a proper decision in the proceeding", such 4
information " received and possessed by a party other than the Comission Staff.... shall also be protected according to the [non-disclosure]-
requirements of % 73.21...." 10 CFRSection2.744(e). Section 73.21, in turn, states that "each person who ... receives, or acquires safeguards information shall ensure that safeguards information is protected against unauthorized disclosure."
Paimetto Alliance's objections clearly go beyond the answers sought by the Board, and constitute an attack on the regulations -- rather than any ruling of this Licensing Board. Like any other regulation, the Commission's regulations involving the protection of unclassified safeguards information are not subject to attack in individual licensing proceedings, except where a petition for waiver or exception grounded upon "special circumstances" is properly applied for and granted by the Commission.5I 5/ The referenced regulations are found in Parts 2, 50, 70, and 73 and were published at 46 Fed. Reg. 51718, on October 22, 1981.
-6/ The appropriate forum to have challenged these rules was the rulemaking proceeding on Protection of Unclassified Safeguards Information. Palmetto Alliance, however, was not among the 45 groups and organizations which availed themselves of this opportunity.
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10 CFR Section 2.758; Diablo Canyon, ALAB-410, supra, 5 NRC, 1398, 1402. Such a petitior. is required to be accompanied by an affidavit showing with particularity the special circumstances establishing that application of the regulation in the proceeding would not serve the purposes for which the regulation was adopted. Palmetto Alliance has not filed such a petition.
In short, Palmetto Alliance's objection to being required to '
litigate its contention subject to the Commission's safeguards information rules constitutes an impermissible challenge to the regulations, the waiver of which has not been shown to be appropriate.
E. Palmetto Alliance's Refusal to Agree to Protective Measures Appears to Preclude Access to Any Portion of the Catawba Security Plan Palmetto Alliance states it "wants no secrets from Duke Power Company which it is bound to hide" since it "is not prepared to be sworn to secrecy; and therefore, seeks access only to such ' sanitized' portions of the security plan and related materials as contain no
' safeguards information' or other information protected against public disclosure." Palmetto's Motion at 4-5. Thus, having challenged the validity of the safeguards infonnation regulations, Palmetto Alliance does not seek a waiver of the operation of the rules, but, rather, seeks to limit its request for access to information which it would not be required to protect against disclosure.
To the extent that Palmetto Alliance believes that a " sanitized" version of a security plan does not require protection from disclosure, it misapprehends the case law. From Diablo Canyon, ALAB-410, supra, 5 NRC at 1405; id., ALAB-592, 11 NRC 746, at 752, it is clear that the purpose of " sanitizing" a security plan was to " insure that it did not reveal the f
operative portions of the actual plan in unnecessary detail". M., ALAB-592, t
11 NRC at 752. Despite the fact that the plan was " sanitized", the plan so
" sanitized was to be released under the protective order and the conditions specified in [the] affidavits of non-disclosure." H.ALAB-592,11NRCat 752-53 (Footnote omitted.) In short, Palmetto Alliance cannot avoid the obligation to protect security plan information by asking for
" sanitized" plan.
Inasmuch as the regulations and case law require that protection be accorded to all safeguards information contained in facility security plans, Palmetto Alliance's unwillingness to agree to such protection precludes granting access to the Catawba security plan. 10 CFR Section 2.744(e);
Diablo Canyon, ALAB-410, supra, 5 NRC at 1404-5.7_/
-7/ It is therefore unnecessary for the Board to rule on Palmetto Alliance's objection to the terms of the Diablo Canyon Affidavit of Non-Disclosure appended to the Board's March 5, 1982 Order. Palmetto's Motion objected to that affidavit's terms insofar as they would prohibit disclosure of any safeguards information received "by any means whatever", i.e., information not obtained by virtue of the hearing process. That provision was, in fact, struck down by the Comission as violative of the First Amendment to the Constitution. See Diablo Canyon, CLI-80-24, 11 NRC 775, 778 (1980). To the extent Intervenor's objection is based on former Commissioner Bradford's additional views against requiring proof that protected information was indeed received outside the hearing process prior to allowing public discussion thereof by an intervenor, such objection is irrelevant. The Diablo Canyon affidavit referred to by the Licensing Board herein contains no such terms, and no such requirement was imposed by either the Comission or the Appeal Board.
9 F. Intervenor's Failure To Comply With the Requirements for Gaining Access to the Security Plan Warrants Rejection of Its Security Contention Palmetto Alliance concedes that it cannot frame an adequately specific security contention without access to the Catawba security plan (Palmetto's Motion at 5). _ To permit Intervenor to fonnulate an adequately specific contention, the Licensing Board would afford Intervenor an opportunity to '
review that plan, provided that Intervenor agrees to be bound by various '
procedural safeguards required by the Conunission's regulations and precedent in order to protect the security plan from improper disclosure. In response, Intervenor has failed to obtain the required security expert to review the security plan, has challenged the requirements for protecting security plans in the Commission's regulations and has effectively refused to enter into the protective agreements necessary before access to the security plan may be granted. In these circumstances and without the necessary protections against disclosure, Intervenor may not obtain access to the Catawba security plan. In turn, Intervenor's security Contention (Palmetto Alliance Contention 23) apparently will not be made adequately specific since, l according to Intervenor, a more specific contention cannot be framed with-I out access to the security plan. Since the current security contention is not adequately specific and will not be made so, the Licensing Board should reject that contention.8_/
-8/ Since the former security workers put forward by Intervenor do not qualify as security plan experts under Commission precedent, and Intervenor has refused to accept applicable protective measures, Intervenor is effectively precluded from litigating its security plan contention. As a result, the Licensing Board need not reach claims raised in Palmetto's Motion regarding protection for the proffered witnesses from alleged potential "harrassment". See Palmetto Motion at 5, 6.
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y G. There is No Basis For Sua Sponte Review of the Catawba Security Pian ,
J Palmetto Alliance " alternatively, or as otherwise'necessary" asks 6 the Board to " pursue this security issue pursuant to its general sus -
sponte authority, as necessary for a proper decision in the proceeding..."
Palmetto's Motion at 6. Intervenor identifies no basis on which the .
Licensing Board could detennine that sua sponte consideration of this [
matter is warranted and, at this point, the Staff knows of none. Under / '
10 CFR Section 2.760a, the Board must find that "a serious safety, environmental, or common defense andJsecurity matter cxists" prior to exercising its sua sponte authority over the contention. Texas Utilities Generating Company (Comanche Peak Steam Electric Station,'bn'its 1 and 2),
CLI-81-36, 14 NRC 1111, at 1114 (1981); 10 CFRSection2.104(c)EI. .
Intervenor has not asserted that "a serious safety, environmental, or' ' ,' '
^
common defense and security matter exists," and, in the absence of 's'uch matter, Palmetto Alliance's request for sua sponte , review should be denied.
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III. CONCLUSION ,
t Palmetto Alliance's motion for an order dirdcting further proceedings on Contention 23 should be denied for the fo11 Sing reasons:
, i 9
-9/ The considerations against sua sponte action here are even stronger than in Comanche Peak. There the Commission ruled that satisfaction of specificity and basis requirements in 10 CFR Section 2.714(b) was insufficient reason for retaining a contention where the intervenor was dismissea from the proceeding, in the absence ^ "a serious safety. . . matter. . . " Here, neither this special snowing nor a showing of specificity and basis for the contention in question has been made.
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(1) Palmetto Alliance has failed to obtain the services of a qualified security plan expert without which access to the Catawba plan should be denied under the holdings of Diablo Canyon.
(2) Palmetto's Alliance's objection that a qualified security plan expert is unavailable to it is unsupported.
(3) Palmetto Alliance improperly seeks to challenge the Comission's Protection of Unclassified Safeguards Information regulations in s this licensing proceeding and refuses to receive information subject to the provisions of these regulations. ,
(4) The Catawba security plan, whether " sanitized" or not, may not be released without a protective order and related affidavits of non-disclosure, to which Palmetto Alliance refuses to agree.
(5) Palmetto Alliance has not demonstrated that a " serious safety, environmental, or common defense and security matter exists" to justify sua sponte review of the Catawba security plan.
As a result, Palmetto Alliance should be denied access to the Catawba security plan, and its Contention 23 should be dismissed.
Respectfully submitted,
[~
George E. Johnson Counsel for NRC Staff Dated at Bethesda, Maryland this lith day of June,1982.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ll l
DUKE POWER COMPANY, ET AL. h Docket Nos. 50-413 50-414 8, (Catawba Nuclear Station. g Units 1 and 2),
CERTIFICATE OF SERVICE 1
I hereby certify that copies of "NRC STAFF'S RESPONSE TO PALMETTO ALLIANCE MOTION REGARDING LITIGATION OF ITS SECURITY CONTENTION" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk, by deposit in the Nuclear Regulatory Comission's internal mail system, this lith day of June, 1982:
- James L. Kelley, Chairman Michael McGarry, III Esq.
Atomic Safety and Licensing Board Panel Debevoise and Liberman U.S. Nuclear Regulatory Commission 1200 17th Street, N.W.
Wasnington, D. C. 20555 Washington, D. C. 20036 Dr. Dixon Callihan Robert Guild, Esq.
Union Carbide Corporation Attorney for the Palmetto Alliance P.O. Box Y .
314 Pall Mall Oak Ridge Tennessee 37830 Columbia, South Carolina 29201 Dr. Richard F. Foster Palmetto Alliance P.O. Box 4263 2135!s Devine Street Sunriver, Oregon' 97701 Columbia, Sooth Carolina 29205 Richard P. Wilson, Esq.
- Atomic Safety & Licendg Board Panel Assistant Attorney General U.S. Nuclear Reguat/Ay Commission l
2.C. Dox 11549 .
Washington, D. C. 20555 Columbia, South Carolina 29211
- Docket and Service Section
- Atomic Safety & Licensing Appeal Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regualtory Commission Washington, D. C. 20555 l Washington, D. C. 20555
Donald R. Belk Safe Energy Alliance 2213 East Seventh Street Charlotte,' North Carolina 28204 Henry Presler, Chairman Charlotte-Mecklenburg Environmental Coalition i 942 Kenley Place Charlotte, North Carolina 28207 .,
Jesse L. Riley Carolina Environmental Study Group 854 Henley Place Charlotte, North Carolina 28207 William L. Porter, Esq.
Albert V. Carr, Esq.
Ellen T. Ruff, Esq.
Duke Power Company P. O. Box 33189 Charlotte, NC 28242 l
fp (4 -
" %# G6orge E Johnson Counsel for NRC Staff t
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