ML20054H831
| ML20054H831 | |
| Person / Time | |
|---|---|
| Site: | Harris  |
| Issue date: | 06/22/1982 |
| From: | Barth C, Karman M, Treby S NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8206250035 | |
| Download: ML20054H831 (120) | |
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1 DESICIIATED ORIGINArj y
Certified By_ 8. Ogg
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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CAROLINA POWER & LIGHT CO'. an'.
Docket Nos. 50-400 d
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50-401 NORTH CAROLINA MUNICIPAL POWER AGENCY NO. 3
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(Shearon Harris Nuclear Power Plant,
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Units 1 and 2)
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NRC STAFF RESPONSE TO SUPP.LEMENTAL STATEMENTS OF CONTENTION BY PETITIONERS TO INTERVENE
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Stuart A. Treby Myron Kaman Charles A. Barth 4
g507 June 22, 1982 f
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8206250035 820622 PDR ADOCK 05000400 0
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TABLE OF CONTENTS
.iF
.Pggi I.
INTa00uCT10n......................
1 II. DISCUSSION.......................
2 A.
Admissibility of Contentions in General......
2 B.
Supplemental Petitions...............
12 1.
Wells Eddleman.................
12 2.
Kudzu Alliance................
70 3.
Richard D. Wil, son, M.D..
76 4
Phyllis Lotchin,................
80 5.
Conservation Council of. North Carolina....
81 6.
Chapel Hill Anti-Nuclear' Group Effort and Environmental Law Project.........
89 Ill. CONCLUSION.......................
99 S
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o UNITED STATES OF AMERICA os NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of CAROLINA POWER & LIGHT CO. and Docket Nos. 50-400 NORTH CAROLINA MUNICIPAL POWER
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50-401 AGENCY N0. 3
)
(Shearon Harris Nuclear Power Plant, Units 1 and 2)
NRC STAFF RESP 0'NSE TO SUPPLEMENTAL STATEMENTS OF CONTENTION BY PETITIONERS TO INTERVENE I. INTRODUCTION On April 2, 1982, this Beard issued its " Order (Scheduling Prehearing Conference and Establishing Certain Filing Deadlines)" which required that "[s]upplements to petitions to intervene setting forth specific contentions shall be served (i.e., mailed) by May 14, 1982" Supplements setting forth propnsed contehtions.were received from petitioners (1) Wells Edd Y.sn (Eddleman), (2) Kudzu Alliance (Kudzu),
(3) Conservation Council of North Carolina (CCNC), (4) Dr. Richard D.
t Wilson (Wilson), (5) Phyllis Lotchin (Lotchin), and (6) Chapel-Hill Anti-Nuclear Group Effort (CHANGE). The two other petitioners, Daniel Read and Environmental Law Project (ELP) filed Motions to Consolidate with CHANGE.
l The NRC Sta,ff files this response to the supplemental petitions pursuant to 10 C.F.R.12.714(c), and the Board's Order of June 4,1982.
I
. In responding to these pleadings, the Staff will first briefly sumarizef the applicable precedent with respect to the adequacy of contentidns in an operating license proceeding. Next, the Staff will discuss the petitions of Eddleman, Kudzu, Wilson, Lotchin, CCNC and CHANGE /ELP, seriatim below.
II. DISCUSSION A.
Admissibility of Conteritions in General In order for proposed con'tentions to be found admissible, they must fall within the scope of the issues set forth in the Notice of Hearing initiatingtheproceeding,1/andcomplywithrequirementsof10C.F.R.
I 2.714(b) and applicable Comission case law. Northern States Power Co.
(Prairie Island, Unit Nos. I and 2), ALAB-107, 6 AEC 188, 194 (1973),
aff'd, Bpl v. Atomic Energy Commission, 502 F.2d 424, 429 (D.C. Cir.
1974); Ducuesne Light Co. (Beaver Valley, Unit No.1), ALAB-109, 6 AEC 243, 245 (1973). Under 10 C.F.R. 62.714(b), a petitioner for interventien in a Commission licensing proceeding must file a supplement to its petition:
which must include a list of the contentions which petitioner seeks to have litigated in the matter, and the bases for each contention set forth with reasonable specificity.
A petitioner who has not filed a supplemental peti, tion which satisfies these requirements with respect to at least one contention will not be admitted as an intervenor.
10 C.F.R. 5 2.714(b).
1/
Public Service Co. of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-316, 3 NRC 167, 170 (1976);'see also,
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Comonwealth Edison Company (Carroll County Site), ALAB-601,12 NRC 18, 24 (1980); Portland General Electric Co. (Trojan Nuclear Plent),
ALAB-534, 9 NRC 287, 289-290, n. 6 (1979).
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i The purposes of the bases requirements of 10 C.F.R. I 2.714 are to it (1) assure that the contention in question raises a matter appropriate s
for litigation in a particular proceeding,2/ (2) establish a,ufficient foundation for the contention to warrant further inquiry into the subject natter addressed by the assertion and, (3) put the other parties suffi-ciently on notice "so that they will know at least generally what they will have to defend against or oppose." Peach Bottom, supra at 20. From the standpoint of basis, it is unnecessary for the petition "to detail the evidence which will be offered in.su port of each contention."
itississippi Power & Light to. (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-130, 6 AEC 423, 426 (1973). Furthermore, in examining the contentions and the bases therefor, a licensing board t,hould not reach the merits of the contentions. HoustonLightir.gandPowerCompany(Allens 2/
A contention must be rejected where:
(a) it constitutes an attact on ap'pitcable statutory requirements; (b) it challenges the basic structure of the Conunission's regulatory process or is an attack on the regulations; (c) it is nothing more than a generalization regarding the intervenor's views of what applicable policies ought to be; (d) it seeks to raise an issue which is not roper for adjudication in the proceeding or does not appply to the facility in question; or YP (e) it seeks to raise an issue which is not concrete or litigable. -
Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13, 20-21 (1974) s
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Creek Nuclear Generating Station, Unit 1), ALAB-590, 11 NRC 542, 548 s
(1980); Duke Power Co. (Amendment to Materials License SNM-1773. J,rans-portation of Spent Fuel From Oconee Nuclear Station for Storage at McGuire t;uclear Station), ALAB-528, 9 NRC 146,151 (1979); Peach Bottom, supra at 20; Grand Gulf, supra at 426.
Thus, at the petition stage, although petitioners need not establish the validity of their contentions and the bases therefore, it is incumbent upon petitioner,s to set forth contentions and the bases thereforwhicharesufficienk'lydetai,1edandspecifictodemonstrate that the issues raised are admissible.
As the Appeal Board instructed in Alabama Power Company (Joseph M.
Farley Nuclear Plant, Units { and 2), ALAB-182, 7 AEC 210, 216-17 (1974),
in assessing the acceptability of a contention as a basis for granting intervention:
[T]heinterventionboard'staskistodetermine, from a scrutiny of what appears within the four corners of the contention as stated, whether (1) the requisite specificity txists; (2) there has been an adequate delineation of the basis for the contention; and (3) the issue sought to be raised is cognizable in an individual licensing proceeding.
(footnotesomitted)
If a contention meets these criteria (and petitioner otherwise satis-fies the requirements of 10 C.F.R. l 2.714(a), the contention provides a foundation for granting intervention " irrespective of whether resort to intrinsicevidencemightestablishthecontentiontobeinsubstantial.E However, the pr p'osed contention should refer to and address relevant 3/
documentation, available in the public: domain, which is relevant to See the Harris plant, particularly the Applicants' FSAR and ER.
Cleveland Electric Illuminating Company et al. (Perry NuclearT6wer Plant, Units 1 and 2), LBP-81-24, 14 NRC 175, 181-184 (1981).
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- The question of the contention's substance is for later resolution -
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either by way of Section 2.749 summary disposition prior to the ' ndentiary e
hearing... or in the initial decision following the conclusion of such a hearing." Farley, 7 AEC at 217.
The Board has alerted tha parties and the petitioners that a potential issue which may arise at the prehearing conference is whether a petitioner is required to put forward all of his contentions at this prehearing conference stage, including the " bases with reasonable specificity" for each contentfan. Orde((Setting New Date for Prehearing Conference and for Related fili,ngs), June 4, 1982, at 4-5.
In its Order, the Board notes that this issue is currently being litigated in Duke Power Comp'any, et al (Catawba Nuclear Station, Units 1 ard 2), Docket Nos. 50-413, 414 The Licensing Board in Catawba opined that the specificity requirement is a perfectly reasonable one, so long as the factual information necessary for specificity is.,ayailable to a petitioner.
However, that Licensing Board stated that due to the way the hearing process is structured, that is often not the case, particularly in the early stages of the proceeding because certain key documents, such as the Staff's safety evaluation report and environmental impact statement and offsite emergency plans are in preparation and not available for public inspection.
Duke Power Company, et al. (Catawba Nuclear Station, Units 1 and 2), LBP.82-
, 15 N.R.C.
, slip op. at 5 (Mitch 5, 1982). Consequently,'the Catawba Board admitted on a conditional basis a
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number of contentions despite a "present lack of specificity" based on the unavailability of Staff or Applicant documents which might allow the 4
' further particularization of the contentions. Catawba, slip op. at 12.
f" The Catawba Board also conditionally admitted certain contentions wbject 5 only to the provision of the requisite specificity after completion of di scovery.
In addition, the Catawba Board waived the application of the late-filing criteria found in 10 C.F.R. I 2.714(a)(1)(1)-(u) for revised or new contentions that may be submitted after new information or analyses become available.
Id at 12, 13.
As noted by the Board on page 4 of its Order, the Staff objected to these rulings by the Catawba Ilo,ard. The Staff's position is that the admission by the Catawba Board of contentions concededly lacking the specificity required by 10 C.F.R. 9 2.714(b) subject to further specification when pertinent.. Staff analyses and Applicant documentation are made available, and the admission of contentions concededly lacking the required specificity subject to further specification after discovery, constitute direct challenges to, and departures from, the specificity standard set out by regulatign.,in 10 C.F.R. 9 2.714(b), as well as the case law applying that standard. The Comission has held that the absence of the Staff's safety evaluation and draft environmental impact statement does not relieve a petitioner of its obligation to plead reasonably specific contentions at the outset of the proceeding, and that discovery for purposes of pleading adequately specific contentions is not permitted. Wisconsin Electric Power Co.
(Kashkonong Nuclear Plant), CLI-74-45, 8 AEC 928, 929 (1974); See also, Northern States PoweWCo.
(Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-107, 6 AEC 188, aff'd tub nom., BPI v. AEC, 502 F.2d 424 (D.C. Cir. 1974.).
7 The Catawba Board's reliance upon the decision in Tennessee Valley Authority (Browns Ferry Nuclear Power Plant, Units 1, 2 and 3),.,...,
ALAB-664, 15 NRC (January 6,1982)wasmisplaced.S The Appeal Board expressly ruled that Browns Ferry was not the " ordinary case" but that it was one in which the petitioners' right to intervene might well turn on the conclusion in an uncompleted Staff analysis. That being the case, the Appeal Board held that a ruling on the petition to intervene should await the completion'of the Staff analysis and petitioners' coments thereon.
Id at 16.' No'such unique circumstances obtain in an operating licensing proceedina where petitioners' right to intervene is not at all dependent upon any Staff or Applicant analyses which are currently unavailable.
--4/
The Comission has decided to review the Appeal Board's decision in Browns Ferry. Tennessee Valley Authority (Browns Ferry Nuclear Plant, units 1, 2 and 3), CLI, 15 NRC (April 16, 1982). Specifically, the Comission will decide the following issue:
Whether the Appeal Board correctly determined that a ruling on the petition for intervention in this proceeding must await the filing by the NRC Staff of its environmental assessment and the opportunity for petitioners and TVA to comment on the assessment.
_Id. slip op. at 2.
The Staff notes particularly the Additional Coments of Comis-sioners Ahearne and Roberts, that, "we tend to agree that the Appeal Board majority confuses the obligations of the NRC with the obligations of prospective intervenors'..." Thus, the Comisison is likely to rule in the near future on whether it is s
propoer to " defer,, rulings on the adequacy of contentions until the receipt of Staff analyses.
' Further, the Appeal Board majority did not support admitting defective contentions, but rather required the Licensing Board to defer ruling on such contentions until issuance of the Staff document. This distinction is important because deferral would not trigger discovery.
In addition, the Catawba Board accorded undue weight to another Licensing Board's decision in Comionwealth Edison Co.
(Byron Nuclear Power Station, Units 1 and 2), LBP-0-30, 12 NRC 683 (1980) for support for its proposition that contentions conceded to be deficient may be admitted conditionally whire la,ter-issued or available documents nay aid
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a petitioner in framing a proper contention.
In Byron, the Licensing Board there admitted contentions on the inadequacy of the Applicant's EnvironnentalReportandof)pplicant'sresponsestoquestionsposedby the Staff, thus attention focused on the inadequacies of existing documents. Contentions on the adequacy of the Staff's treatment of generic safety issues in an unavailable Staff SER were admitted based on specific directions by the Appeal Board,in, Virginia Electric and Power Co.
(North Anna Nuclear Power Station, Units 1 and 2), ALAB-491, 8 RNC 245 (1978), and Gulf States Utilities Company (River Bend Station, Units 1 and 2), ALAB-444, 6 NRC 760, (1974) that Licensing Boards should consider the adequacy of the Staff analysis of generic safety issues.
In no instance did the Byron Board make a finding that the contentions lt it admitted failed to meet the specificity requirements of 10 C.F.R.
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%2.714(b). The Byron Board itself noted that:
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It is incumbent upon intervenors to frame their contentions with sufficient preciseness to show that the issues raised are l
within the scope of cognizable issues to be considered in an l
adjudicatory proceeding. To this end, a hearing participant must be specific as to the focus of the desired hearing, and I
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9 contentions must serve the purpose of defining the ' concrete f-issues which are appropriate for adjudication in the proceeding.'
Properly framed contentions will furthers %
reasonably inform the other parties what issues they will be required to defend against or oppose to develop a complete record in an evidentiary hearing.
Id. at 689.
The Staff is firmly convinced that the admission of vague contentions for which there are stated no bases with reasonable specificity is improper. Without the specificity requirements for contentions in 10 C.F.R. 5 217,14, it cannot be assured "at the pleading stage that the hearing process is not ii6 properly invoked," Peach Bottom, supra, 8 AEC at 21.
Further, admission of vague contentions, even conditionelly, subjects a proceeding to unwarranted discovery and consequent delay. The practical effect of admitting broad contentions, even conditionally, is to invite Intervenors to submit broadly framed discovery requests, not limited in any respect to matters relevant to the factual bases for their contentions, since they are not made to
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specify those bases.
The Staff has objected to the Catawba Board waiving the criteria for late-filed contentions in 10 C.F.R. 6 2.714(a) where new or revised contentions are submitted following the availability of Staff and Applicant documents or new information or analysis becomes available.
The Staff submits the provisions of 10 C.F.R. 92.714(a) are clear on their face and,the Commission has, on several occasions, restated its position that the laf.e-filing criteria are to be applied to new or anended contentions based upon previously unavailable information.
See
" Koshkonong, supra, 8 AEC at 929; Indiana and Michigan Electric Company. (Donald C. Cook Nuclear Plant, Units 1 and 2) CLI-72-25, 5 AEC 13,.
14 (1972); Statement of Consideration adopting revisions to Secti m 2.714(a) (43 Fed. Reg. 17798, April 26, 1978). Thus, it is imprope to waive the criteria in 10 C.F.R. 5 2.714(a). On the other hand, the Staff agrees with the Applicant that new information in documents not currently available will constitute good cause for the filing of new contentions and, in such circumstances, that factor (i) will prevailoverabalancing,asIb.eregu{ationprovides,withfactors(ii) to (v) of 10 C.F.R. 5 2.714(a)(1).
In sum, the Staff submits that proposed contentions should be judged by the standard in 101.,C.F.R. 5 2.714(b) of " bases with reasonable specificity".
If licensing documents which are made available in the future contain new information, that new information will constitute good cause for filing a new contention and, in such circumstances, that good cause or factor (i) would prevail ig p balancing of the factors in 10 C.F.R. 9 2.714(a)(1). An alternative to this approach would be the one followed by another Licensing Board in Commonwealth Edison Company (Quad Cities Station, Units 1 and 2), LBP-81-53,14 NRC 912, 914-915 (1981) which deferred ruling on proposed contentions which must depend on later issued documents for specifity and basis. Under either approach, discovery must await the ruling of the Board admitting the contention.
In addition to the specificity and bases requirements of 10-C.F.R.
5 2.714(b), certain Ether Commission regulations and requirements are relevant to a determination of the admissibility of certain of the proposed contentions. Under 10 C.F.R. 5 2.758, a party to a Commission
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11 licensing proceeding cy. challenge in an adjudicatory proceeding any'*"
rule or regulation of the Comission, except by way of a petitio'n'*-
requesting that the application of a specified rule or regulation be waived or an exception made for the particular proceeding.
In responding to proposed contentions, the Staff has opposed the admission of certian proposed contentions which improperly challenge Comission rules or regulations. Certain petitioners, (Eddleman, CHANGE /ELP, Kudzu and CCNC) have requested permission to seek waiver or exception to any rule or regulation the Board 'c'onsiders,.t.o be attacked by a proposed contention. Such a request cannot be substituted for the process prescribed by 10 C.F.R. 5 2.758.
On March 26, 1982, the'C, omission published in the Federal Register a final rule, effective April 26, 1982 amending its regulations in 10 C.F.R. Part 51 (specifically, 5 51.21, 51.23(e) and 51.53(c)) to provide that need for power and alternative energy sources issues will not be considered in operating licensing, proceedings for nuclear power plants. 47 Fed. Reg. 12940(1982)5/ On March 31, 1982, the Comission published in the Federal Register a final rule, effective imediately, which, by amending various sections within Parts 2 and 50 of the Comission's Rules (10 C.F.R. parts 2 and 50), eliminated the requirements for financial qualifications review a'nd findings for
" electric utilities" applying for construction permits (CP) or operating licenses (0L).for production or utilization facilities of the tfpe 5_/
A copy of the notice is attached.
~ l described in 10 C.F.R. 6 50.21(b) or 50.22. The rule also provided that r-the issue of financial qualifications shall not be considered by an.
atomic safety and licensing board in an operating license or construction permit hearing for such a facility owned by such applicant (s). 47 Fed.
Reg.13750 (1982).6_/ The Comission stated that the elimination of the financial qualfications review at the CP and OL stages included the elimi-nation of any consideration of a decomissioning finding.7/
Certain petitioners, (Eddleman, CHANGE /ELP, Kudzu and CCNC) have proposed conten-tionswhichseektoraiseisshe.sConcqrningneedforpower/ alternative energy sources and financial qualifications.
In light of the amendment of the regulations, proposed contentions raising those issues should not be admitted as issues in this, proceeding.
Supplemental Petitions 1.
Wells Eddleman On May 12., 1982, Petitioner Eddleman filed his " Supplement to Petition to Intervene" (" Supplement"), in which he ra'.ses 135 contentions 6/
A copy of that notice is attached.
7/
See 47 Fed. Reg. at 13751. The Comission rejected one of the alternatives set forth in its proposed rule, viz, eliminating the
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financial qualifications review requirement at the CP stage, but retaining it at the OL stage with respect to the costs of decomissioning. 46 Fed. Reg. 41786 at 41790-91 (August 18, 1981). The Comission considered it more appropriate to consider the mattef of decomissioning costs in a rulemaking which it is conducting.
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. which he seeks to litigate in this proceeding.0/ On June 5,1982 Mr.
Eddleman submitted additional contentions.
In his filing, he addre.sses the factors for late contentions set forth in 10 C.F.R. l 2.714(a)(1).
In view of the early stage of this proceeding where the special prehearing conference to consider proposed contentions has not been held, the Staff does not object to Mr. Eddleman supplementing his prior filing of proposed contention and address these latest proposed contentions on the merits of their acceptability under 10 C.F.R. 6 2.714(b). The Staff's respon e.to the., proposed contentions follows.
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Mr. Eddleman's Supplement consists of some 250 pages, and includes numerous motions and requests for Licensing Board action in addition to his request that his, contentions be admitted for litigation. For example, Mr. Eddleman re' quests that he be permitted to raise addi-tional contentions when new information becomes available (Supple-ment at 6); (2) that those new contentions be permitted to be filed id, at 7); (3) that while he has according to his proposed schedule ( Esed on the yet to be filed filed "a good number of contentions documents such as the SER, ES, amendments to FSAR and ER", he should be allowed to clarify and amend those contentions when additional information becomes available (id, at 10); (5) that various matters id. at 14-15);
be certified to the Appeal BoarTor Cbninission (e.., Tsuspended by (6) that construction of the Shearon Harris facia ty b this Licensing Board (id. at 16); and (7) that certain contentions be litigated on an expHited schedule prior to the litigation of other contentions (e.g., id_. at 15-16).
The Staff believes that responses to all such motions and requests of Mr. Eddleman other than his request that his contentions be admitted for litigation are not required at this time. As the Licensing Board is aware, only parties to a proceeding may file motions and otherwise participate in a proceeding; to date, Mr. Eddleman has not been admitted as an intervenor and, accordingly, his motions should be stricken and/or disregarded at this time.
Furthermore, the Staff objects to any attempt by the Petitioner to have contentions admitted contingent spon' subsequent provision of basis in support thereof pursuant to discovery, as contrary to Commission policy and practice, where no basis has been provided at the time the contention was filed.
_ 14 A.
Matters of General Applicability
.,m.
While Mr. Eddleman has fonnulated a lengthy " statement of gene,ral applicability incorporated by reference into each and every contention filed herein (including any to be filed later in this proceeding)"
(Supplement at 14), the Staff believes that the incorporation of that statement into the specific contentions would only serve to obscure the issues sought to be raised by each contention and, accordingly, should be stricken and/or disregarded.
A similar statement was expressly rejected by the Licensing' Boa'rd,in By.ron, supra, 12 NRC at 689-90 In that case, the petitioner had set forth "a number of reservations of rights, directions as to the interpretation and intended scope of references, statements of in.tention," and other matters.
The Licensing Board held that "such statements and directions will be disregarded as contrary to the Commission's Rules of Practice" (id.).
In addition, the Eddleman Supplement contains a number of
" definitions" and " addenda" (Supplement,at, 22-27,240-47). The Staff believes that these definitions and addenda are incurably confusing and overly broad. For example, Mr. Eddleman asserts that wherever the word
" accident" appears in his Supplement, it is to be read to mean any event which arises from a stated host of causes "or any other failure not explicitly analyzed in documents actually available in the LPDR for the Harris plant on or before May 14, 1982". Such a definition serves only to helplessly diffuse the meaning of Mr. Eddleman's contentions and altogether fails'to'" define" those contentions.
In addition, his
" definitions" are so broad that they cause h.is contentions to fail to meet the " reasonable specificity" requirement of 10 C.F.R. Q 2.714.
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Accordingly, the Staff believes that Mr. Eddleman's definitions and addenda should be stricken and/or disregarded in their entirety.* %-
- 4 Furthermore, throughout the Eddleman Supplement, an attempt is made to " incorporate by reference" one contention into another. This whole-sale incorporation by reference pervades the Supplement and affects almost every one of the 135 contentions filed by Mr. Eddleman. For example, Contention 106 incorporates by reference 34 other contentions
-- numbers 3, 15, 31, 33, 40,, 41, 42, 43, 44, 56, 57, 65, 71, 72, 73, 74, 76, 77, 78, 79, 80, 81, 821,. 88, 91,.,94, 96, 97, 99, 100, 101, 102, 103, and 105 -- many of which, in turn, incorporate other contentions.
Contention 11 concerning cable insulation and jacketing incorporater by reference contentions 3 and 4 concerning management capability and the single failure criterion. Similarly, Contention 17 incorporates contention 20, which in turn incorporates Contentions 15 and 16. Other examples trzy be found throughout the Supplement. As a result, the con-tentions are most confusing and present.ser,fous problems in attempting f
to answer or litigate them. Accordingly, the Staff believes that this incorporation by reference of one contention into another should be stricken and/or disregarded and that each contention should be read to include only the language expressly set forth within the body of that j
contention.
1 Finally, throughout the contentions, allegations are made concerning the,, adequacy of the NRC Staff's EIS and SER, documents which do not even exist at'this time. The Staff believes that these allega-I tions cannot conceivably have basis at this~ time and should be disregarded and/or stricken from the contentions.
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' B.
Individual Contentions
.J' Contention 1 (Radiation Monitors)
. L.
The Staff opposes the admission of this contention on the grounds that it lacks adequate basis. All that appears within this contention is a general assertion that certain types of monitors are appropriate for the Harris facility. The Petitioner has not indicated that the facility's radiation monitors are deficient or will fail to meet NRC requirements.
Further, the reference to the ability of North Carolina State agencies to monitor radfation around nuclear power plants in the t
State is irrelevant, and fails to raise an, issue appropriate for liti-gation in this proceeding.
Contention 2 (Radiation Monitors)
The Staff opposes the admission of this contention on the grounds that it lacks sufficient basis and is nothing more than a generalization of the Petitioner's personal views. Here,.as.,in Contention 1, the Petitioner has not indicated how the facility's radiation monitoring equipment is inadequate nor has any basis for such an assertion been provided.
- Rather, all that appears is a general assertion that a certain type of equipment should be required, at least according to the Petitioner's personal views.
1 Contention 3 (Management)
A.
The Staff supports the admission of this subpart of tRe proposed contention.
B.
The Staff opposes the admission of'this subparts of proposed Contention on the grounds that it is outside the scope of this proceeding l
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and lack adequate basis. CP&L technical qualifications to design and F'
construct the Harris Plant was reviewed and resolved at the construction s
permit stage and are therefore, outside the scope of this proceeding.
See, LBP-79-19, 10 NRC 37(1979). While Applicants' technical qualifica-tion to operate the Harris plant is within the scope of this proceeding, no basis is provided to support the claim that Applicants personnel lack the necessary technical qualifications.
C.
The Staff opposes the admission of this subpart of proposed Contention 3 on the ground thSt, it lacks basis and is vague.
It is unclear from this contention what information is alleged to have been withheld by the Applicant from the NRC Staff. The only specific reference to the withholding of information is Petitioner's reference to "the 12.31.80 cost estimate of SHNPP Units 1 and 2"; however, even this reference f ails to indicate what information was withheld and fails to provide sufficient basis for the contention.
D, E and F.
The Staff opposes the admission of these subparts of proposed Contention 3 on the ground that they fail to provide sufficient basis. While various matters relating to the Brunswick Nuclear Power Plant are set forth, the contention does not support a claim that the Shearon Harris facility will be affected by those problems or that a pattern of behavior exists which will affect the facility.
G.
The Staff opposes the admission of this subpart of proposed Contention 3 o.n the ground that it fails to provide adequate bas 4s in support thereof.' Thl information referred to by Petitioner in this contention concerns hiring and supervisory. personnel at the Brunswick facility only. No information has been provided which would support an
. allegation that the Harris facility is affected by similar problems.
-y.
Absent an allegation that the problems experienced at Brunswick werp influenced by higher corporate management, such that a pattern of behavior might be detected which could affect the Shearon Harris facility, the Staff believes that this contention is inadmissible.
H.
The Staff opposes the admission of this subpart of proposed Contention 3 on the ground that it fails to provide adequate basis and is vague. To the extent tha.t the contentior. concerns the "SR0 desirable" requirement for senior personhel',. it does not appear to assert that' any NRC regulations are being violated or that plant safety will be affected; to this extent, the contention fails to raise a litigable issue.
Furthermore, to the exttnt that the contention concerns organizational charts, it fails to provide adequate basis in support thereof.
Petitioner's claim that the " actual individuals" need to be seen, along with "how well they work together", is not supported by any information which would indicate that those individuals will not be capable of proper operation of the facility. Similarly, the claim that
" levels of staffing specified are insufficient" is not supported by any information which would indicate why the presently projected levels are inadequate, nor is the claim that employees "are or will be insuffi-ciently qualified" anything more than a speculative assertion devoid of any basis.
I.
The Staff opposes the admission of this subpart of proposed Contention 3 on the igrounds that it is speculative and lacks adequate basis. Although Petitioner refers to "a temporary 15 per cent pay cut to hundreds of... employees now being transferred" to the facility, and
. asserts that " discovery may be required to pin down the extent and naturer of these transfers, the period of the pay cuts," etc., absolutely no basis has been given to support the allegations that morale problems will result from these unspecified pay cuts; that workers will develop a " don't care attitude"; that strife will exist among workers; that competent workers will seek jobs elsewhere; or that workers will perfom less well due to resenteent. Just how speculative these charges are is demonstrated by Petitioner's statement that "these effects are difficult to specify in greaterdetailnow,sincethey.havenot.butjustbeguntohappenand little if any information on their exten }savailable"(Supplementat 44).
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Contention 4 (Single Failure Criterion)
The Sta'I opposes the admission of this contention on the grounds that it lacks basis, is vague, and constitutes a challenge to applicable NRC regulations.
No information whatsoeyer is provided which would indi-cate that the control room or the facility itself is so " outdated" as to be unsafe.
Similarly, references to problems which may have been experi-l enced at the Brunswick facility are not shown to be related to the Shearon Harris facility. As Petitioner, himself, notes, he will "need discovery to complete the details of this one" (Supplement at 47); indeed, at this time, there are no facts indicated which provide a basis to support the admission of this contention.
"r l
l l
l
. Contentions 5 and 6 (Constitutional Issues) e;-
The Staff opposes the admission of these contentions on the. grounds that they constitute a challenge to NRC regulations and to the basic structure of the Commission's regulatory process, and seek to raise issues which are not appropriate for litigation in this proceeding.
Contention 7 (Accident Analysis)
The Staff opposes the admission of this contention on the grounds that it lacks basis and is va'gue.., Witi,le Petitioner asserts that there is a " lack of a comprehensive failu're modes and defects analysis",
he has not indicated in any manner how the Shearon Harris accident analysis is deficient.
Contention 8 (Table S-3 and Dose Models)
The Staff submits that consideration of this contention should be deferred.
Petitioner points to the rece,nt decision by the U.S. Court of Appeals for the D.C. Circuit which has remanded the Table S-3 rule to the Commission for further consideration and asserts that Applicants' and Staff's documents should comply with the court decision. NRDC v. NRC (D.C. Cir., April 27,1982). The impact of this decision on the Comis-l sion's current licensing procedure is under consideration by the Comis-sion and the Staff believes that further guidance by the Comission in 1
this area may be anticipated. The Staff recomends that the Board defer ruling on this" aspect of the contention until the Comission issues guidance to licensing boards regarding consideration of fuel cycle issues in individual proceedings.
Petitioner also attacks the adequacy of the NRC's dose models. The NRC Staff is required in its environmental
21 -
statement "to take account of dose comitments and health effects from f fuel cycle effluents set forth in Table S-3."
10 C.F.R. t 51.23(ch Since the Staff's environmental statement has not yet been prepared, Petitioner's contention is premature. The Board should defer ruling on this contention until Petitioner has had the opportunity to review the Staff's document and to submit within a reasonable time thereafter any specific contentions he may chose to propose.
Contention 9 (Electrical Equiohent)
The Staff opposes the admission of th,is contention on the grounds that it lacks basis and is overly vague. While the Petitioner sets forth,inessense,alaundrf.,listofequipmentwhichhecontendsisnot environmentally qualified, he sets forth no information in support of that allegation.
In addition, he altogether fails to specify why the FSAR and ER are " deficient, in error and lack up-to-date information".
I Contention 10 (Westinghouse Reports)
The Staff opposes the admission of this contention on the grounds that it is speculative, lacks basis, and is overly vague. No informa-tion is provided which would indicate that the Westinghouse reports (many of which are unnamed) are deficient. Further, no basis is provided which supports Petitioner's speculation that "NRC review will not be timely enough n,or accurate enough nor thorough enough" (Supplem4nt at 54) or that the Applicants' 15 per cent pay cut to some unspecified employees indicates that the Applicant will be prevented "from conducting more extensive review" (id.).
- Contention 11 (Cable Insulation and Jackets) i The Staff opposes the admission of this contention on the grounds i
that it is speculative and lacks sufficient basis. While the Petitioner theorizes a great number of events which "could" cause deterioration of cable insulation and jacketing, no information is provided which would indicate that any such event is credible for the Shearon Harris facility and should be included among the facility's design basis accidents. Lack of basis is demonstrated, for example, by the Petitioner's allegation that the f acility's "very old d,esign dating from the early 1970's in
~
which many cable paths are not adequately separated (raising the odds that degradation and embrittlement of jackets and insulation... won't be detected" (jd. at 60) -- t,his allegation is pure speculation and lacks any basis whatsoever.
Contention 12 (Ocean Dumping)
TheStaffopposestheadmissionofghiscontentiononthegrounds that it lacks sufficient basis, is speculative, and has no relevance to the application which is pending before the Licensing Board at this time. There is no reason to believe at this time that the facility's low level waste will be disposed of by ocean dumping, or that the l
Applicants intend to conduct such a method of waste disposal. Further-more, there is no reason to believe at this time that such a method of waste disposal.will be permitted by the EPA in the future.
4 l
0 l
l l
. Contention 13 (Offsite Monitoring) f-The Staff opposes the admission of this contention on the grobnds that it lacks sufficient basis. The Petitioner has not indicated how the Applicants' current radiation monitoring provisions are inadequate, and only asserts that the Applicants have not provided " proof" as to the adequacy of such monitoring. This is insufficient basis to support a litigable contention.
Contention 14 (Need for Power'and NEPA Balance)
The Staff opposes the admission of th,is contention on the grounds that it constitutes "a need for power" contention, which has been pro-scribed fron litigation in op,erating license proceedings.
10 C.F.R. 6 51.53(c). To the extent that the contention asserts that the costs of operation exceed the benefits resulting therefrom and the issue of need for power should be reopened, petitioner must make a showing of special circunstances pursuant to 10 C.F.R. 5 2.7,58, why an exception or waiver from the new rule should be permitted.
Petitioner has not done so and the contention should be denied.
Contentions 15, 16 and 17 (NEPA Balance) i The Staff opposes the admission of these contentions in their present form on the grounds that they lack basis, are overly broad, are speculative, and constitute a challenge to Commission regulatio6s to the extent that they seef to litioate alternate energy sources and need for power.
10 C.F.R. 5 51.53(c). See also, 47' Fed. Reg. 12940 (1982).
24 -
Contention 18 (Steam Generator Repairs)
The Staff opposes the admission of this contention on the grounds that it lacks basis and is speculative. Essentially, the contention asserts that the f acility's steam generators will require repair and/or replace-ment, and that the cost of such action has not been considered in the NEPA cost / benefit analysis. No basis to support a contention that such repairs or replacement will be necessary has been set forth by Petitioner.
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Contention 19 (Steam Generatob Tube Failure)
TheStaffopposestheadmissionofIhiscontentiononthegrounds that it lacks sufficient basis and is overly vague. While the Petitioner clains that the FSAR and other documents (unnamed or not yet written) do not adequately address matters pertaining to steam generator tube integrity, no basis is provided in support of this vague assertion, nor is any indication given as to how the FSAR and other documents are deficient.
Contention 20 (Unit 2 Cancellation)
The Staff oppeses the admission of this contention on the grounds that it lacks basis and raises an issue which is not concrete or liti-While the Petitic,er states that "CP&L is concealing [inforna-gable.
tion) concerning plans to cancel Unit 2, which can be developed on discovery" (Supplement at 81), he provides no information at this time insupportoftI*ata'1.1.egation. Absent such a basis, the contention is purely speculative and is inadmissible.
Contention 21 ( Alternate Energy Sources)
The Staff opposes the admission of this contention on the grounds that it constitutes a challenge to Comission regulations. Pursuant to 10 C.F.R. 9 51.53(c), the issues of need for power and alternative energy sources have been expressly removed from the scope of permissible contentions in an operating license proceeding and, accordingly, this contention is inadmissible.
Contention 22 (NEPA Balance) '-
The Staff opposes the admission of this contention on the grounds that it lacks adequate basis in many of its subparts. For example, while the petitioner asserts that fuel cost estimates "are erroneously low" (Supplement at 85), no basis for this assertion has been provided.
Contention 23 (NEPA Balance)
TheStaffopposestheadmissionof}hiscontentiononthegrounds that it is vague, lacks adequate basis and constitutes a challenge to Comission regulations. Part A of the contention concerns need for power and alternate energy sources; these matters have been expressly proscribed from litigation in 10 C.F.R. 6 51.53(c).
See also 47 Fed.
Reg. 12940 (1982). The matters set forth in Part 8 lack basis with respect to this facility and are, instead, essentially a catalog of issues which m,ight be generally applicable to nuclear power plant licensing. Whil'e the:;eneral allegation is made that the Environmental Report fails to " discuss accurately and up.to date the new information which is now available as to costs, benefits, environmental effects and
other natters" (Supplement at 88), no such information is specifically identified by the Petitioner and, accordingly, the contention fails to raise an issue capable of being litigated.
Contention 24 (Spent Fuel Transfer)
The Staff opposes the admission of this contention on the grounds that it lacks adequate basis, is speculative, constitutes a challenge to Commission regulations, and. raises issues which are not within the scope of this proceeding. Essential'ly..the., contention asserts that spent fuel will be transferred to Shearon Harris from other facilities, resulting in an increased risk of terrorist attack at the Shearon Harris facility.
Even assuming, arguendo, that, spent fuel will be transferred to Shearon Harris, the contention is inadmissible. Part 73 of the Comission's regulations require that security plans take into consideration attacks by terrorists who are armed with weapons ranging up to automatic weapons; excluded from the scope of Part 73 are o.ther weapons such as are referred to in the contention, e.g., " armor piercing mortar and cannon,...
precision guided munitions,... TOW missiles, etc." (Supplement at 89).
Furthermore, there is no basis to support the allegation that terrorist attacks are made more likely as a result of any spent fuel transfer. The contention fails to identify any particular deficiencies in the security plan and, indeed, no such deficiencies could be identified at this time.
Finally, to the extent that the contention raises issues concerning terrorist attacks onlehicles engaged in the transportation of spent fuel, the Staff believes that it raises matters not within the scope of this proceeding.
. Contention 25 (Spent Fuel Transfer)
-F-The Staff opposes the admission of this contention for the reasons set forth in response to Contention 24, supra. In addition, the Staff opposes the admission of this contention on the grounds that it raises natters concerning alternatives to spent fuel transportation to and from the Shearon Harris facility (such as reracking and spent fuel pool expansion), which are not within the scope of this proceeding.
Contentions 26, 27 and 28 (S Nnt Fuel Transfer)
The Staff opposes the admission of th,ese contentions for the reasons set forth in response to Contentions 24 and 25, supra.
~.
Contention 29 (Radioiodine)
The Staff opposes the admission of this contention on the grounds that it lacks basis, is vague and overly broad, and fails to raise an issue capable of being litigated. While.,th,e contention asserts that the dose models utilized by the Applicants (as well as those to be used by the Staff) are inadequate, no information has been provided as to how those models are inadequate.
In addition, the contention seeks to raise numerous different issues concerning accident conditions, routine emis-sions, monitoring, effluent treatment systems, and emergency planning, and as such is so broad as to be incapable of being litigated.
e Contention 30 (Emergsney Planning)
The Staff submits that contentions on emergency planning are prema-ture until the availability of draft emergency plans. Where there is no
information available to Petitioner with respect to Emergency Planning, the Staff recognizes that he cannot frame contentions.
10 C.F.R. 4.50.47..
and Appencix E require radiological emergency response plans to protect health and safety for both onsite and offite areas. Wake County and Chartham County, North Carolina, do not have offsite radiological emergency response plans for contingencies at the Shearon Harris site.
The State of North Carolina does have a state plan, although it has not been modified for the site, if indeed any modification is necessary.
The Staff submits that thi Bo'ard shoqld defer ruling on the admissibility of proposed emergency planning contentions until Petitioner has had an opportunity to review the emergency plans and then submit specific contentions, if any, with respect to any concerns or deficiencies it identifies in the emergency plans. The Staff recommends that 30 days after draft emergency response plans have been sent to FEMA for review and comment would be a reasonable period to submit new contentions.
Contention 31 (NRC Staff Capability)
The Staff opposes the admission of this contention on the grounds that it constitutes a challenge to Comission regulations and to the basic structure of the Comission's regulatory process. No information has been provided by the Petitioner which would support a claim that the NRC Staff will act in dereliction of its regulatory responsibilities, nor is there any f,oundation for Petitioner's claim that "NRC Staff has a history of coll 'sion with Applicants" (Supplement at 97). Further, such an issue is not appropriate for litigation in this operating license proceeding.
Contention 32 (Emergency P'anning)
The Staff submits that consideration of the the admission of % is contention be deferred for the reasons set forth'in response to Conten-tion 30, supra.
Contention 33 (Intervenor Funding)
Contention 33 constitutes a request for intervenor funding, for an extension of time, and for NRC Staff assistance to the Petitioner in this proceeding.
It is not iri.any secse, a contention. The Staff opposes these requests for the reasons set forth 1,n footnote 1, supra; in addi-tion, we note that intervenor funding has been expressly prohibited by Section 502 cf Pub. L. No. 97,-88, 95 Stat. 1135 (1981). See Wisconsin Electric Company (Point Beach Nuclear Plant, Units 1 and 2), ALAB-666, 15 NRC (February 12,1982).
Contentions 34, 35 and 36 (" Class 10 Events")
The Staff opposes the admission of these contentions on the grounds that they constitute a challenge to Comission regulations, fail to pro-vide adequate basis, and are vague. Essentially, the Petitioner asserts that a new group of accidents, which he labels " Class 10" events, requires evaluation and that the Staff's ES and SER are deficient in not evaluating such events.
The Staff. submits that these contentions are premature untfi the publication of the Staff's documents and should not be admitted at this time.
Pursuant to the Comission's Statement of Interim Poilicy, 45 Fed. Reg. 40101 (1980), the Staff will be assessing the impacts of
'+
4
- servere accidents (those beyond the design basis of the facility and s
sometimes referred to as Class 9 accidents) in its Draft Environcren,tal Statement. The Policy Statement calls for discussion of severe accidents in applicants' environmental reports filed after July 1,
'~'
1980. Since the report for Shearon Harris was filed prior to that date.
no such discussion is required in Applicants' Environmental Report. The' Staff suggests that consideration of proposed contentions relating to -
the Staff's analysis of the environmental impacts of severe accidents be deferrec until Petitioner'has41a'd. a r,easonable opportunity to review the Staff's DES and proposed specific con n}ionsbasedonnewinformation.
in the document.
Health and Safety Class 9 Accidents To the extent that Petitioner is seeking to litigate the safety
/
impacts of beyond design basis accidents, the Staff objects to this proposed contention as challenging the C mmission's design criteria.and regulatory requirements established to assure the health and safety of 1
the public. The Commission has, pursuant to its Atomic En'ergy Act
)
s mandate of providing reasonable assurance of protecting the publid s
health and safety, promulgated regulations in 10 C.F.R. Part 50 wh'ich s
n set forth the design standards which must be met by applicants.' In' m
1 order to determine the adequacy of the plant design,"the' Staff ha's k
developedase.tofdesignbasisassumptions(seeRegolltoryGLide1.J0, Section15)agai..nst which the acceptability of a 'particular plant can be judged.
f
'1
)
s s
s '
s e'
e 5
e
h 1
. The fundamental obligation of a licensing board in determining
. ~j -
whether an operating license application satisfies the standards fe_r licensing is to ascertain compliance with currently applicable Comission regulations at issue in the proceeding. As pointed out by the Appeal Board in the Maine Yankee operating license procedding, a licensing boerd need not go beyono detennining that an applicant has complied with applicable Comission regulations in determining whether there is adequate protection to the public health and safety.0/
The relevant inquiry fc a I.icerts,ing Board in evaluating whether it
~
should consider a proposed contention--otherwise in compliance with 10 C.F.R. I 2.714--is to ask the following:
(a) does the contention articulate a question of an applicant's compliance with existing regulatory requirements, or (b) does it attempt to compel an applicant to measure up to standards beyond those now required by the existing regulatory structure. The question of compliance with existing regulations is a basic finding required by,the Comission's regula-tions,El andtheAtomicEnergyAct,EI as a prerequisite to issuance of an operating license for a nuclear reactor.
4
--8/
Maine Yankee Atomic Power Co. (Maine Yankee Atomic Power Station),
ALAB-161, 6 AEC 1003, 1010 (1973), remanded for elaboration, CLI-74-002, 7 AEC 2 (1974), further statement of Appeal Board views, ALAB-175, 7 AEC 62 (1974), affirmed sub nom; Citizens for Safe Power v. NRC 524 F.2d 1291 (D.C. Cir.1975). Accord Potomac Electric Power Co.
(Douglas Point Nuclear Generating Station, Units 1 and 2), ALAB-277, 1 NRC 539, 545 (1975); Public Service Company of tiew' Hampshire, et al. (Seabrook Station, Units I and 2),
ALAB-422, 6 NRC*33, 42 (19 W s
9/
10 C.F.R. t 50.57(a)(1) to (a)(3).
H / Atomic Energy Act of 1954, as amended, i 185; 42 U.S.C. 5 2235.
4
. In summary, for a " class 9" safety contention to be admitted the 5-proponent must cover a violation of an NRC regulation (10 C.F.R.'.Part
- 50) or requirement (Reg. Guide 1.70); he must cover a specific scenario which leads to the violation; and he must set forth with particularity the basis for his assertions. Cf Catawba, supra, Slip op at 27-28.
Petitioner has failed to do so and these proposed contentions hsould not be admitted.
Contention 37 (Health Effect b.
The Staff opposes the admission of Contention 37 in its present form on the grounds that it lacks adequate basis, is vague, and is overly broad. This contention, whic,h rambles for 9 pages and includes references to Hitler, the BEIR report, the Heidelberg study, Attila the Hun, the Nurenburg trial, the U.S. Constitution, cancer pain and suffering, psychological stress, and myriad other matters, in effect constitutes a scatter shotgun attack on nuclear power.and appears to have little, if anything, to do with the operating license application which is pending before this Licensing Board. Nowhere in the contention is there any discussion of aspects of the application which are alleged to be deficient. On the contrary, while the Petitioner asserts that "the above considerations... on radiation health effects have been systema-tically excluded from the ER.., leading to an improper balancing of costs and bensfits.under NEPA" (Supplement at 111), the lack of speci-ficity and the consiiferable breadth of the contention preclude its litigation in this proceeding.
- Contentions 38 and 39 (Antitrust Violations)
.7, The Staff opposes the admission of these contentions on the. grounds that they raise matters which are outside the scope of this proceeding.
Contention 40 (Sua Sponte Review)
Contention 40 is a request that the Li encing Board adopt, sua syonte, "any significant issues... that are not raised, not known, or not sufficiently specifically addressed by the petitioners in conten-
~. ~.
tiens (or not raised by NRC Staff)" (Supplement at 121). Contention 40 does not, in any sense, constitute a true ontention. The Staff opposes this contention for the reasons set forth in footnote 1, supra; in addition, the contention is ' overly broad, and fails to raise a concrete issue capable of being litigated.
Contentions 41 and 42 (OA/QC and Training Program)
TheStaffopposestheadmissionofjhesecontentionsonthegrounds that they lack sufficient basis, are overly vague, and raise matters (e.g., concerning the Diablo Canyon facility) which are outside the scope of this hearing, i
Contention 43 (Management) l l
The Staff opposes the admission of this contention on the grounds that it lacks sufficient basis, fails to identify the issues sought to be litigated by ihe ' Petitioner, and is overly broad.
Contention 44 (fianagement)
The Staff opposes the admission of this contention on the grounds that it lacks sufficient basis and fails to identify the issues sought to be litigated by the Petitioner. While the Petitioner challenges the adequacy of fire protection at the Brunswick facility, no information has been provided which would indicate that the Shearon Harris facility will be affected by problems similar to those whi:h might exist at that other facility.
Contention 45 (Water Hammer)
The Staff opposes the admission of this contention on the grounds that it lacks basis, is vague, and overly broad, and fails to identify clearly the issue sought to be litigated by the Petitioner. This issue of water hammer is a generic safety issue pending before the Co m.ission, which should not be litigated in an individual licensing proceeding absent a demonstrated nexus to the faciljty in question. Gulf States Utilities Co. (River Bend Station, Units 1 and 2), ALAB-444, 6 NRC 760, 772-73 (1977) aff'g LBP-76-32, 4 NRC 293 (1976). At the same time, it seeks to litigate welding, quality control, pressure testing and other unrelated issues, without adequate basis and without indicating clearly what issues are sought to be raised. Accordingly',*the contention fails to raise a concrete issue capable of litigation.
Contention 46(heut.dnShieldAccident)
'I The Staff opposes the admission of this' contention on the grounds that it lacks basis, is overly broad, and is totally speculative in nature.
- While the Petitioner postulates an event in which the " reactor neutron shield falls and blocks coolant flow to the core" (Supplement at 115),
and alleges that this event is applicable to the Shearon Harris facility "in view of the age of the reactor vessels... the age of the neutron shield and other equipment... ", etc. (id. at 126), those allegations do not provide the necessary basis to warrant the litigation of this contention.
Rather, the event postulated by the Petitioner has not been shown to be credible or to require further consideration for the Shearon Harris facility. Further, no'informatiqn has been provided which would suggest that the Applicants' accident hna],vsis is deficient or that the consequences of the scenario postulated by the Petitioner are not included within the parameters of th'at analysis.
Contenticns 47, 48 and 49 (Fast Fracture Accident)
The Staff opposes the admission of these contentions on the grounds that they lack sufficient basis. While.the Petitioner alleges that the Applicants' accident analysis does not give adequate consideration to "f ast fracture of the reactor vessel", that scenario has not been shown to be credible or to require further consideration for the Shearon Harris facility.
Further, nowhere is any indication given as to how the Appli-cants' accident analysis is deficient or that the consequences of the accidents considered within that analysis do not include the consequences postulated by,he Petitioner, in addition, notwithstanding the%11ega-t tion that Applicants inspection program is inadequate, nowhere is any 3
reason given why the Applicants' inspection' plan might fail detect the problems postulated by the Petitioner.
Similarly, the allegation that t
. the f acility's technical specifications are deficient is clearly specula 9" tive at this time when, as the Petitioner, himself, notes, "the *thchnical
specifications do not exist as yet" (Supplement ~at 131).
Contention 50 (Suspension of Construction)
The Staff opposes the admission of this contention on the grounds that it lacks basis and raises matters outside the scope of this proceeding. While the Petitioner claims "that there is no evidence that
... the reactor vessels..'. are not,already containing cracks" (Supplement at 133), he essentially raises,an altogether speculative hypothesis that such cracks might already exist; no information has been provided which could support.such an allegation. Furthermore, the Petitioner's request for the suspension of construction is outside the scope of this operating license proceeding. Finally, to the extent that the contention seeks the consideration of " fast fracture" in the NEPA cost / benefit analysis, no information haf 4een provided which would indicate that the Applicants' accident analysis does not already con-sider events whose consequences include the consequences of the scenario postulated by the Petitioner; absent such information, no basis exists which supports the admission of this contention.
Contention 51 (Metal Surveillance Program)
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TheStaff.,opposestheadmissionofthiscontentionontheTrounds that it lacks suffic'i'ent basis and is overly broad.
Petitioner has not shown how the Robinson experience is releva'rit or applicable to the Harris plant.
Petitioner has not stated any basis for speculation that l
l l
l l
_ 37 _
Applictnts' fracture analysis is not sufficiently conservative. See FSAR'.1
% 5.3.1.6.
. ' r, Contention 52 (Large Airplane Crash)
The Staff opposes the admission of this contention on the grounds that it lacks adequate basis and constitutes a challenge to Commission regulations. Essentially, the contention asserts that terrorists could ccamandeer a large airplane.and crash it into the facility, and that this (as well as accidental crashes).should be considered in the safety analysis. No basis has been provided which would support a view that an accidental crash of a large airplane is credible or reasonably possible.
While the Petitioner states'4 hat the facility "is close enough to the Raleigh-Durham Airport and other facilities", that an expansion of the airport "is now being begun to accept large planes", and that a new runway " points in the general direction of the Harris plant" (Supplement at 138), the Staf f believes that these allegations f ail to provide ade-quate basis. These allegations do not demonstrate that large planes will be using the new runway, what the frequency of such usage might be, that the flight path goes anywhere near the Shearon Harris facility, or that the f acility is located within reasonable proximity to the comercial airport or the unnamed "other facilities".
Furthermore, to the extent that the contention asserts that a large plane crash could result from terrorist acti.ons, the contention clearly poses a challenge to 'Bart 73 of the Comission's Vegulations.
., -?
Contentions 53 and 54 (Security Plan)
The Staff submits that the Board should defer ruling on the idmissi S '
bility of these proposed security plan contentions until additional information has been furnished to the Board by Eddleman. The Staff urges that this Board adopt the course followed by the Catawba Board whereby that Board asked the petitioners to consider the procedural complexities and costs associated with raising security plan. issues and to advise the Board within a prescribed time as to whether the intervenors wished to pursue such issues. CataSa, supra..slipop.at37-39. The Staff has attached to this response the appropriate,pages of the Catawba Board's Orders of April 13, 1982 and March 5, 1982 which discuss that Board's proposal for handling security. plan issues. As noted above, the Staff supports the approach taken by the Catawba Board and will urge its adoption by this Board.
In this circumstances, if Petitioner intends to pursue this issue, the Staff suggests that it would be appropriate for Petitioner to provide to the parties,(Applicants and Staff) and the Board the names and professional qualifications of the experts to be engagad by Petitioner in advance of the preharing conference.
If Eddleman demonstrates an intention and ability to pursue security plan issues, a procedure could then be established for him to propose specific contentions, the Applicants and NRC Staff'repond to them, and for the Board to rule on them.
n.
Contention 55 (Deradded Fighter Pilot Attack)
The Staff opposes the admission of this contention on the grounds that it lacks adequate basis, is totally speculative, and fails to raise
.. a concrete issue capable of litigation in this proceeding. NoinformatiE'n' I
has been provided which could support the theory that "a derange'd kighter i
plane pilot might fire on the Harris plant with air to ground missiles" or that " pilot error or computer error could also cause a missile to take off at the nuclear plant" (Supplement at 149).
Contentions 56and57(EmergencyPlanning),
The Staff submits that' consideration of the admission of these contentions should be deferred.for the, reasons set forth in response to Contention 30, supra.
Contention 58[1] (Accident Analysis)
The Staff opposes the admission of this contention on the grounds that it lacks adequate basis and is overly broad. Essentially, this contention asserts in the most general terms that the Applicants' accident analysis fails to consider an eftgnsive catalog of accident scenarios. The Petitioner has not shown that any of these events should be considered " credible" for the Shearon Harris facility, or that the consequences of those events are not within the parameters of the conse-l quences resulting from the accidents which were analyzed by the l
Applicants. On its face, the contention does not' appear to be related to any particular deficiency in the facility's accident analysis, and merely lists pqtential accidents which could be theorized for aky nuclear power facility. Absent a specific allegation that the Shearon Harris accident analysis is deficient and a ' basis for that allegation, this contention should not be litigated in this proceeding. The Staff
40 -
also incorporates by reference, its discussion of Accident Analysis in 4
response to proposed Contentions 34, 35 and 36 supra.
Contention 58[11] (Financial Qualifications)
The Staf f opposes the admission of this contention on the grounds that it lacks adequate basis and constitutes a challenge to Commission regulations as set forth in 10 C.F.R. % 2.104..See also, 47 Fed. Reg. 13750 (1982).
~~....
Contentions 59 and 60 (Need for Power and_ Alternate Energy Sources)
The Staff opposes the admission of these contentions on the grounds that they raise issues which. are expressly proscribed from litigation in an cperating license proceeding, and constitute a challenge to Commission regulations as set forth in 10 C.F.R. 6 50.53(c). See also, 47 Fed. Reg. 12940 (1982).
Contention 61 (Health Effects)
The Staff submits that consideration of the admission of this conten-tion be deferred. The contention challenges the adequacy of Table S-3.
As discussed in Contention 8 supra, the Staff believes that further action by the Connissior ts; be anticipated in this regard, and the Staff suggests that censideration of the admission of this contention be deferred at the present time.,,
8
' ~
- {~~~
Cuntention 62 (Hill Tailings)
The Staff opposes admission of this contention on the groun'di that it raises a matter which is outside the scope of this proceeding.
While the Petitioner asserts that " Applicants have not taken appropriate measures... to reduce the impact on health and environment" resulting from uranium mill tailings, no Comission regulation requires these Applicants to take such actions. As the Licensing Board is aware, the actions which may be taken by persons engaged in the milling of uranium are are not subject to controi.of thts,g,rcup of Applicants nor are they subject to Licensing Board review in this. operating license proceeding.
Contention 63(Emergencypliinning)
The Staff submits that consideration of the admission of this contention be deferred for the reasons set forth in the response to Con-tention 30, supra. However, we note that the contention appears to be virtually icentical to Contention 56, and does not, in fact, constitute an additional contention.
Contention 64 (Spent Fuel Transfer)
The Staff opposes the admission of this contention on the grounds that it is overly broad, lacks adequate basis, raises matters which are outside the scope of this proceeding, and constitutes a challenge to Comission regu,lations to the extent that it challenges Table SA.
Essentially, this con'tention involves the transportation of spent fuel fromothernuclearreactorstotheShearonNarrisfacility,andstorage of that spent fuel in the Shearon Harris spent fuel pool; however, those issues are not properly within the scope of this operating license pro-
.. ceeding.
Finally, to the extent that the contention asserts that variouf t
I risks will result from such transfer, no basis has been shown in iGpport of those assertions; similarly, any claim that emergency response personnel are not properly qualified to handle the risks of spent fuel shipments is outside the scope of this proceeding.
Contention 65(ConstructionDefectsl The Staff opposes the a;1 mission of this contention on the grounds that it lacks adequate basis.
N5 infortpation has been provided which would indicate that the base mat and conta,inment of the Shearon Harris facility are inadequate or contain voids, as is theorized in this contention. While the contention asserts that the contractor (Daniel International) has constructed defective base mats and containments at other facilities, assuming, arguendo, that that is true, no nexus has been established to suggest that those problems might be present in the Shearon Harris facility.
Contention 66 (Financial Qualifications)
The Staff opposes the admission of this contention on the grounds that it constitutes a challenge to Cormission regulations, as set forth in 10 C.F.R. 5 2.104. See also, 47 Fed. Reg. 1375'O (1982).
Contention 67'.(Low-level Waste Disposal Site)
The Staff oppose's the admission of this contention on the grounds that it lacks adequate basis and is inherent'ly speculative. While the contention asserts that there is a potential lack in the future of an
43 -
" assured disposal site" for low level radioactive wastes, the contentione.:w.
does not allege that such disposal sites are unavailable at this,ti,me.
Similarly, the contention provides no information which would indicate that such sites will be unavailable in the future, other than pointing to the alleged " refusal of SC, NV and WA states to continue to accept unlinited amounts of low-level radioactive wastes" (Supplement at 172).
Similarly, while the contentiun asserts that " sea disposal is not assured" because an EPA rule has not yet been put in place, "and if enacted may be overturned'by 1.egal ac, tion or act of Congress" (jd.),
. ~
these allegations reflect only speculation by the Petitioner as to future availability of waste disposal sites, and fail to provide any basis for a litigable contention.
Contentions 68 ano 69 (High-level Waste Disposal Site)
The Staff opposes the admission of these contentions on the grounds that they lack adequate basis, are specula,tive, and seek to raise issues which are outside the scope of this operating l'icense proceeding. To the extent that the contention seeks to raise the issue of long-term storage following the expiration of the operating license, the conten-tion raises matters which are beyond the scope of this proceeding.
Furthermore, the Conraission has initiated a rulemaking proceeding to
" reassess its degree of confidence that radioactive wastes produced by nuclear facili. ties will be safely disposed of, to determine when any such disposal will be avkilable, and whether such wastes can be safely stored until they are safely disposed of."
" Storage and Disposal of Nuclear
44 i
Waste", 44 Fed. Reg. 61372 (October 25,1979).
In this notice, the Ccmission stated that:
During this proceeding the safety implications and environ-mental impact of radioactive waste storage on-site for the duration of a license will continue to be subjects for adjudication in individual facility licensing proceedings.
The Commission has decided, however, that during this proceeding the issues being considered in the rulemaking should not be addressed in individual licensing proceedings.
These issues are most appropriately addressed in a generic proceeding of the character here envisaged. 44 Fed. Reg. 61373.
It thus clear that any consihr'ation of the storage of high-level radio-active waste beyond the term of the license or in off-site facilities is not pernissible within the scope of this p'roceeding.
Contention 70 (Containment Penetration Assemblies)
The Staff opposes the admission of this contention on the grounds that it lacks adequate basis, is overly broad, and constitutes a challenge to Comission regulations. The Petitioner has provided no basis to support its general allegation that the Shearon Harris facility has failed to resolve problems described in I&E Notice 81-20.
Furthermore, the contention is quite broad, requiring litigation of the ability of all containment penetration systems to withstand any and all Class 9 and lesser accident scenarios.
In addition', to the extent that the contention asserts that Class 9 accidents should be included among the facility's design basis accidents, the contention constitute,s a challenge to C'o'miss.i,on regulations. The Staff also incorporates by reference its discussion of Accident Analys.i,s in response to Eddleman's proposed Contentions 344, 35 and 36 supra.
- c...
Contention 71 (Equipment Qualification) f The Staff oppcses the admission of this contention on the grognds that it la'cks adequate basis, is vague and overly broad, and constitutes a challenge to Commission regulations. While the contention asserts that the FSAR fails to provide sufficient documentation to support state-ments that safety equipment has been qualified for Class 8 conditions, it fails to provide any reason to believe that the statements in the FSAR are inaccurate. Furthermore, the contention is quite broad, addressing any and all equipment which was sppplied by Ebasco.
In addition, to the extent that the contention asserts thatilass 9 accidents shotld be included aaong the design basis accidents for the facility, it constitutes a challenge to Commission regulations. See response to Contentions 34, 35 and 36 supra.
Contention 72 (Equipment Qualification)
The Staff opposes the admission of,this contention on the grounds that it is vague and overly broad, lacks basis, and constitutes a challenge to Commission regulations. No information has been provided to support its assertion that all of the safety-related electrical equipment of the facility has been inadequately qualified with respect to severe environmentol conditions. Furthermore, the equipment in question is purportedly both safety-grade and non-safety-grade, and includes pumps, motors, electrical equipment, valves, wiring, and other unspecified hardware-:-- a list so vague and broad as to cause the con-tention to be incapable of litigation.
In addition, to the extent the contention utilizes the Petitioner's definition of " accident," it seeks
0-
- tc require Class 9 accidents to be included among the design basis
,s r accidents for the facility, and thus constitutes a challenge to.. c.
Commission regulations.
See response to Contentions 34, 35 and 36 supra.
Contention 73 (TMI Action Plan)
The Staff opposes the admission of this contention on the grounds that it lacks adequate basis is vague and overbroad. While the conten-tion alleges generally that. the facility has not been shown to be in fullcompliancewithNUREG-05'0,NUREG-0737"andotherupdatesandparts 6
~
ofTMIactionplan",noinformationisfrovidedwhichwouldindicate that the facility will not comply with any particular aspect of the THI action plan. The assertion',that the FSAR commits to future compliance with those requirements and, as such, fails to provide " proof" that compliance has been achieved, does not raise a concrete issue capable of litigation in this proceeding.
Furthermore, to the extent that the con-tention seeks to litigate compliance "with,the full TMI action plan", the
^
contention is overly broad and fails to specify the areas of concern to the petitioner.
Contention 74 (NRC Staff Capability)
The Staff opposes the admission of this contention for the reasons set forth in response to Contention 31, supra.
/
Contention 75('dccidentAnalysis)
The Staff opposes the admission of thi,s contention on the grounds that it lacks sufficient basis, is speculative and overly broad, and
47 f ails to raise issues which are appropriate for litigation in this pro-r-ceeding or which are shown to apply to the Shearon Harris facili4.y, This *,
contention raises such diverse niatters as steam generator tube leaks, operator error, steam generator design defects, biocide corrosion, marine growth, sabotage, reactor trips and zirconium-water reactions. The con-tention clearly fails to raise a concrete issue capable for litigation; in addition, no basis is provided which would support the litigation of any part of this contention in this proceeding, nor are any of the matters raised shown to bl a }icable to this facility. Similarly, much of the contention is speculative, such as the assertion that operator
" desperation" will exist, leading to containment venting, or the risk that marine organisms will prove resistent to the biocide added to cool-ing water.
Furthermore, no information is provided which would indicate that the Applicants' accident analysis is deficient in any particular respect.
s Contentions 76 and 77 (Cable Insulation and Jackets)
The Staff opposes the admission of these contentions on the grounds that they lack basis, are overly broad and are inherently speculative.
The contentions fail to provide information which would suggest that the scenarios postulated by the Petitioner -- in which cable jackets and insulation fail, causing short circuits and failure of hydrogen monitors and recombinets, leading to a pressure pulse and breach of contrinment --
are ' credible" eventf for this facility.
Petitioner's claim that "many variations" are possible with respect to its postulated hydrogen genera-tion scenario (Supplement at 184) is vague and overly broad, and demon-
o strates that the contentions are not capable of litigation. Similarly,
'a the scenario postulated with respect to failures not involving hydrogen generation -- including operator error, short circuits, equipment failure, ATWS, explosive release of the vessal head, earthquakes, etc. (jd. at 184-85) -- is overly broad and is not capable of being litigated.
Contention 78 (Loss of Power)
The Staff opposes the admission cf this contention on the grounds that it lacks sufficient basis,, is ov,erly broad, and does not appear to raise matters which apply to the Shearon Harris facility. While the con-tention asserts that the facility's design and construction (including wiring, electrical components, cable tray positions, cable insulation and jackets, and other unspecified components) are deficient, nu information is given which would support such claims. Rather, the contention appears to be speculative at best, and is altogether devoid of any facts relating to this facility..,,
Contention 79 (Cooling Tower)
The Staff opposes the admission of this contention on the grounds that it lacks basis, is speculative and overly broad, and fails to raise a concrete issue capable of litigation. While the' petitioner asserts that the accident analysis peformed by the applicants is deficient in that it fails,to consider the " collapse or breakage of water li/es to or from, or collapse of'the cooling towers" (id_. at 187), no basis has been provided which woul,d support the contentiond The contention does not contain information which would indicate that the postulated earthquake
r 49 -
(with or without the theorized " heavy truck"), cooling tower collapse, f..
The contention is inherently speculative in or other event is credible.
nature, and provides no information as to how the facility's accident analysis fails to consider accidents which are credible for the facility.
Contention 80 (Mixing and Dispersion Models)
The Staff opposes the admission of this contention on the grounds that it lacks basis. While,the contention asserts, in general terms, that the mixing and dispersi n,models,.2Lre inadequate, nowhere is any information provided as to how those models are deficient.
Contention 81 (Emergency Planning)
The Staff submits that consideration of the admission of this contention should be deferred for the reasons set forth in response to Contention 30, supr_a_.
Contention 82 (Pre-operational Monitoring Program)
The Staff opposes the admission of this contention on the grounds that it lacks basis and is speculative. No basis is provided to support the broad assertions that the facility's pre-operational moni-In addition, the contention is inherently toring program is deficient.
speculative and lacks any basis for the theory that offsite monitors may have been "cdotaminated accidentally or deliberately" (Supplement at 189).
9
o I."-
Contentions 83 and 84 (Cooling Tower Blowdown)
The Staff opposes the admission of these contentions on the'.dtounds *.,
that they lack basis, are overly vague, and are inherently speculative.
While the contentions assert that the blowdown from cooling tower operations will negatively impact aquatic and human' life, no information has been provided which would indicate that the Applicants' environmental In analysis fails to adequately consider the effects of such blowdown.
addition, no information is provided as to any toxic chemicals or other wastes in Cape Fear River or elsewhe're which might interact with chlorine cr other unspecified chemicals which may e released from the Shearon Harris facility.
Contentions 85 and 86 (Fish Kills)
The Staff opposes the admission of these contentions on the grounds that they lack adequate basis, are vague and are inherently speculative.
Contention 85 is a one-sentence general allegation which lacks any basis Similarly, while Contention 86 asserts that the Environmental whatsoever.
Report fails to consider adequately the issue of thennal and chemical effluents insofar as they may result in fish kills, nowhere in the conten-tion is any information provided which would support-these allegations, i
l or which would indicate that the Environmental Report is inadequate.
Essentially, Petitioner contends that peak values should have been used rather than avera'ge values, and that experimental data must be obtained prior to plant operation as to the ability of unnamed fish species to survive the thermal effluent. However, ilo information is provided which l
wuuld indicate that the Applicants' analysis understates the impact likely l
l
to result from plant operation, or that the Petitioner's suggestions are.-
.2 valid.
Contention 87 (Psychological Stress)
The Staff opposes the admission of this contention on the grounds thc.t it lacks basis, is speculative, and raises an issue which is outside the scope of this proceeding. No information is provided which would support the allegatio'n,that psychological' stress may be expected in the vicinity of the Shearon. Harris', facility as a result of normal operation; in any event, however, the issue of psychological stress is The Comission has not appropriate for litigation in this proceeding.
expressly helo that this is'su,e was not to be considered in the TMI-1 restart proceeding. Although that decision was recently reversed, in 14,1982),the P,eople Against Nuclear Energy v. NRC (D.C. Cir., May issue of whether psychological stress is cognizable under NEPA in a nornaloperatinglicenseproceedinghasjotbeenresolveddefinitively.
In addition, the Staff believes that further Comission action with respect to this issue may be anticipated. Accordingly, even if basis l
were to have been presented, this issue should not be considered until further resolution of the matter is provided.
Contention 88 (Use of Exclusion Area l
The Staff opposes the admission of this contention on the grounds that it lacks basis and constitutes no more than a generalization of The the Petitioner's views of what applicable policies should be.
l Petitioner asserts that " recreational facilities around the plant should
.- be within the exclusion area... and thus no such use of them sh allowed" (Supplement at 198).
In raising this assertion, the Pe'titioner merely sets out his persoval views as to how the exclusion area should be defined and what activities should be permitted therein -- without provid-ing any basis in suppurt of those assertions and without regard to the provisions in 10 C.F.R. Part 100 which permit public use of the exclusion Similarly, while the contention asserts that the cost of evacua-area.
tion of the exclusion are.a has not been considered, it fails to provide information which would 16dicite that;such costs have not been considered, Finally, to the or that they will amount to more than a negligible sum.
extent that the contention. asserts that the emergency plans are inade-quate, the Staff proposes d'df,erral of consideration the admission of the contention for the reasons set forth in response to Contention 30, supra.
Contention 89 (Post-0peration Site Restoration)
The Staff opposes the admission of,this contention on the grounds that it lacks adequate basis. The Staff's EIS, which is here alleged to be deficient, does not yet exist; accordingly, no basis could exist which would support this contention.
In addition, the contention does not indicate that the Applicants' Environmental Report is deficient or that I
the Applicants' decommissioning plan f ails to include the cost of restoring the site following the expiration of the operating license.
I Contention 90 (Site Restoration - Units 3 and 4)
The Staff opposes the admission of this contention on the grounds that it lacks adequate basis and fails to raise matters which are appro-
.- priate for litigation in this proceeding. Essentially, this contention F asserts that the cost of restoring the sites of Units 3 and 4, Whit.h have been cancelled, should be considered in connection with the licensing of Units 1 and 2.
Clearly, the cost of such restoration is not appropriate for consideration in connection with the application to operate Units 1 and 2, and should be considered only in proceedings relating to Units 3 and 4 Contention 91 (Radiation Monitoring by North Carolina)
The Steff opposes the admission of this contention on the grounds that it lacks adequate basis and fails to raise an issue which is To the extent that the appropriate for litigation 'iri this proceeding.
contention asserts that the State of North Carolina has inadequate resources to nionitor radiation levels near the plant, the contention In raises matters which are not within the scope of this proceeding.
addition, the contention is speculative,to,the extent that it asserts that " budget cuts in North Carolina are likely" which would have an impact en the State's radiation monitoring program (Supplement at 200).
Further, to the extent that the contention implies that offsite emergency planning is inadequate, the staff opposes the admission of this con-tention for the reasons set forth in response to Contention 30, supra.
Contention 9'3.(ECCS)
The Staff opposes the admission of this contention on the grounds While the contention asserts that the that it lacks adequate basis.
ECCS at the Shearon Harris facility is deficient, nowhere in the
contention is any information provided which would support such an allegation, or which would indicate that the events hypothesized In the contention are credible and should be considered among the design basis accidents for the facility.
Contention 93 (Accidental Criticality in Damaged Core)
The Staff opposes the admission of this contention on the grounds that it locks adequate basis,, and is inherently speculative. The Staff incorporates by reference its~c}iscuss', ion of accident analysis in
~
response to proposed Contentions 34, 35 and 36 supra.
Contention 94 (Financial Cualifications)
The Staff opposes the admission of this contention on the grounds that it lacks adequate basis and consitutes a challenge to Comission regulations, pursuant to 10 C.F.R. l 2.104. See also, 47 Fed. Reg. 13750 (1982).
Contention 95 (Cost of Insurance)
The Staff opposes the admission of this contention on the grounds While the contention that it lacks adequate basis and is overly vague.
asserts that the Staff's Environmentai Impact Statement is deficient, that document has not yet been written and no basis could exist at this tine to support this contention. Furthermore, no information is given which would sbppot,t the allegation that the cost of property insurance has not b'een properly
- considered in the Applicants' cost / benefit analysis.
c.
Contention 96 (Cable Insulation and Jackets)
The Staff opposes the admission of this contention for the reasons In addition, to set forth in response to Contentions 76 and 77,' supra.
extent that the contention asserts that an accident "might occur so tht:
rapidly that the existing emergency response plan could not go into effect" (Supplement at 204), the Staff opposes the admission of the contention f or the reasons set forth in response to Contention 30, supra.
Coi.tention 97 (Emergency Plaktting)
~
The Staff submits that consideration, of the admission of this contcntion should be deferred for the reasons set forth in respcnse to Contention 30, supra.
Contention 98 (Creation of Wildlife Habitat)
The Staff opposes the admission of this contention on the grounds that it lacks adequate basis and constitutes no more than a generali-zation of the Petitioner's views as to what applicable policies ought to Essentially, the contention argues that a wildlife habitat should be.
The contention, as such, be established and funded by the Applicant.
i raises matters which are outside the scope of this proceeding and which l
~
are inappropriate for litigation herein.
Contentions % and 100 (Emergency Planning)
The Staff submits that consideration of the admission of these contentions should be deferred for the re'asons set forth in response to Contention 30, supra.
i i
g i
Contention 101 (t.evel of Staffing) nds The Staff opposes the admission of this contention on the gr that it lacks adequate basis and is overly vague. Nowhere in the con-tention is any information provided which would support the allegation that the number of persons to be trained to work in the control room, is inadequate or that the Applicants' training program is deficient.
Contentions 102 and 103 (Emergency Planning)
TheStaffsubmitsthatc60sidera}.jonoftheadmissionofthese contentions should be deferred for the he'asons set forth in response to Contention 30, supra.
Contention 104 (Cost of Decomissioning) 4 The Staff opposes the admission of this contention on the grounds that it lacks adequate basis, is speculative; and is barred by the Com-mission's final rule on financial qualif[ cation. No information in provideo which supports the allegation that the decommissioning cost estimates are deficient. The contention essentially speculates that decorrissioning costs will be greater than now anticipated, and that such costs will increase "if radiation exposure standards for workers continue to be lowered" (Supplement at 209). This is inadequate to support the admission of a contention. Finally, the Comission stated thattheelibnationofthefinancialqualificationreviewincluded the elimination of arty consideration of decommissioning findings.
47 Fed. Reg. 13750 at 13751 (1982).
Contention 105 (Exclusion Area)
The Staf f opposes the admission of this contention on the grdnds that it lacks adequate basis and constitutes a challenge to Conunission regulations. No information is provided which would support the allegation that the exclusion area and LPZ have been " improperly established" (Supplement at 210).
In addition, to the extent that the contention asserts that Class 9 accidents should be considered in the establishmer.t of the exclusi,on area and LPZ, the contention consitutes a challence to 10 C.F.R. % 100.11
.Fu(thermore, the contention is overiy vague, in that it fails to specify which' additional accidents should be considered to be " credible" and were not considered by the Applicants.
Finally, to the extent that the contention asserts that the zoning codes of various counties and municipalities "need to be revised", the contention raises matters which are inappropriate for litigation in this proceeding.
Contention 106 (hRC Staff Capability) t The Staff upposes the admission of this contention for the reasons i
set forth in response to Contention 31, supra.
Contention 107 (Generic and Other Safety Issues)_
The Staff opposes the admission of this contention on the grounds that it lack's' ad' equate basis, is overly broad, fails to raise a toncrete issue capable of litigation, and raises matters which are inappropriate for consideration in this proceeding. The. contention asserts that the Staff's SER in deficient, however, that document has not yet been written
s In c.
and no basis could exist at this time in support of the contention.
addition, the contention essentially sets forth ~a la'undry list.of gneric.,
~
and other safety issues, none of which have been indicated to be, credible for the Shearon Harris facility, and'none of which are supported'b'y ' '
adequate basis for litigation in this proceeding. Furthemore, ito the, extent that the contention raises generic safety issues, such matters may not be litgated in an operating license proceeding absent a nexin 7to the facility in question. Gulf States Utilities Co. (River Eend Station, Units 1 and 2), ALAB-444, 6 tIRQ '760,-]72-73 (1977), aff'g'LBP-76-32 4 Idic 293 (1976).
Contention 108 (Testing of' Equipment) s The Staff opposes the admission of this contention on the grounds that it lacks adequate basis, is overly vague and constitutes a challengF to Commission regulations. While the contention asserts that reactor control systems and instrumentation have.been ina'dequately described, no informt. tion is set forth which would support that allegation nor is it
.In clear to which systems or instruments the petitioner is referring.
~
addition, to the extent that the contention seeks to include Class 9 cvents among the design basis accidents for the facility, it constitutes' a challenge to Comission regulations. See response to proposed contentions 34, 35 and 36 supra.
Contention 109 (Adequacy of Environmental Report)
The Staff opposes the admission of t'his contention on the grounds While'the contention that it lacks adequate basis ano is overly vague.
s 3>
' asserts that the Environnental Report inadequately describes effluents,!.-
biota,chemicalandradiationbackground,thefuelcycle,andradihlogi-cal impacts, no information is provided as to how the Environmental The Petitioner's claim heport's analysis of these niatters is deficient.
that the Environmental Report is 50 deficient as to preclude the formula-tion of cententions is absura on its face, and does not provide any basis for this contention.
Contention 110 (Adequacy of FSAR)
The Staff opposes the admission of this contention on the grounds that it lacks basis and is vague and overly broad. Here, as in the previouscontention,thealle,gationismadethattheApplicants'docu-nents (as well as the Staff's as yet unwritten docunents) provide Even inadeouate information to permit the formulation of A contention.
assuming, arguendo, that this allegation was true, nowhere in the con-icntion is any information provided as to which particular aspects of
~
Rather, all the FSAR (or other documents) the Petitioner is referring.
that appears is an extrenely broad listing of equipment and systems which are alleged to be inadequately described. This is insufficient to support the admission of the contention.
Cortention 110x (Adequacy of EIS)
The StakT submits that this proposed contention is premature since the contention asserts that the Staff's EIS -- a document which has not yet been written -- is deficient. The Staff suggests that consideration of the admissibility of the contention be deferred until Petitioner has
i
. han a reasonable opportunity to review and submit specific contentions
~
based on new information in the EIS.
Contention 111 (Systen Independence)
The Staff opposes the admission of this contention on the grounds While the contention that it lacks adequate basis and is overly broad.
asserts that safety and control functions are insufficiently independent,
- Further, no infornation is given which would suppurt this allegation.
the cor.tention broadly asserht that tge, alleged lack of independence applies tu the reactor, the primary cooling system, "and other parts of the nuclear stean supply system and its controls" (Supplement at 221).
This allegation is vague and, overly broad, and fails to provide any indicatiun as to the specific components or systems which the petitioner conterds are inadequately designed. While the contention asserts that this problem is "particularily applicable to Harris because of its out-dateddesign...",noinformationisjivenwhichwouldsupportthis
~
allegation or which would indicate that the age of the facility's design is a factor in the independence of its systems.
112, 113 and 114 (Steam Generator Defects)_
Contentions The Staff opposes the admission of these contentions in their present form on the grounds that they are overly broad and fail to raise 14onetheless, the Staff a concrete issue capable of being litigated.
believes that these contentions might be rewritten in an acceptable form.
Contention 115 (ATWS)
TheStaffopposestheadmissionofthiscontentiononthegr$nds that it lacks adequate basis and is overly broad.
In addition, to the extent that the contention asserts that Class 9 events must be included an.cng the facility's design basis events, the contention constitutes a See response challenge to Comission regulations and is inadmissible.
to Contentions 34, 35 and 36 supra. Further, to the extent that the contention raises a generic' safety issue, it fails to provide the requi-sitenexuswhichwouldpermit*i,tslitfoetioninthisproceeding, asis
~
set forth in response to Contention 107,* supra.
Contention 116 (Fire Prote tion)
The Staff opposes the admission of this contention on the grounds While the general that it lacks adequate basis and is overly vague.
allegation is made that unspecified portions of the fire protection and fire supression systems are inadequate, no,information is provided which
~
would support this allegation.
Similarly, as to allegations concerning the adequacy of fire protection for the " computer system" and " wiring systens", no information is provided which would support those allega-tions, nor is it clear what components of those systems are alleged to be inadequately protected.
ContentionsY17and118(EmergencyPlanning)
The Staff submits that consideration the admission of these contentions should be deferred for the reasons set forth in response to Contention 30, supra.
Contention 119 (Accident Classification)
TheStaffopposestheadmissionofthiscontentiononthegr5nds that it lacks adequate basis, is overly vague, and constitutes a chclienge to Commission regulations. Essentially, this contention appet.rs to argue (1) that all credible Class 1-8 events should be con-sidered to be Class 9 events in any NEPA cost / benefit analysis, on the theory that these lesser events could occur together; and (2) that Class 9 events will be morelevere and more likely to occur than is presently predicted. No infhtmation,i[s,provided in the contention as to which events are affected by this prohosed " revised" classification scheme, or why those events should be believed to be more credible or serious than is presently recognized. All that appears here is the Petitioner's personal view of the matter, unsupported by any basis.
This is insufficient to permit the litigation of this contention.
Contention 120 (Missile Protection)_
~[,
The Staff opposes the admission of this contention on the grounds that it lacks adequate basis, is overly broad and constitutes a challenge to Comission regulations. Essentially, this contention appears to argue (1) that all credible Class 1-8 events should be considered to be Class 9 events in any NEPA cost / benefit analysis on the theory ttiat these lesser events could occur together; and (2) that Class 9 evends wil.1 be more severe and more likely to occur thart is presently predicted. No information is provided " revised" classification scheme, or why those events should be believed to be more credible or serious than is presently recognized. All that appears here is the
." Petitioner's personal view of the riatter, unsupported by any basis.
This is insuf ficient to permit the litigation of this contention..
~
Cor.tention 120 (Missile Protection)
The Staff oppuses the admission of this contentior,on the grounds that it lacks adequate basis, is overly broad and constitutes a challenge to Commission regulations. No information is provided as to why the existing design is inadequate, as to the areas in the facility where such protection is inaddquate. of-as to the credibility of events such as are theorized by the Petitioner,Nhereby " shrapnel and missiles" from pumps, bolts, pipes "and other such flying objects" strike the In addition, vaguely icentified systems lo,cated within containment.
to the extent that the contention asserts that Class 9 events should be included among the design basis accidents for the facility, the conten-tion constitutes a challenge to Comission regulations. See response to Contentions 34, 35 and 36 supra.
Contention 121 (Emergency Planning The Staff submits that consideration the admission of this t
contention should be deferred for the reasons set forth in response i
to Contention 30, supra.
Contention 1 2 (N nancial Qualifications)
The Staff opposes the admission of this contention on the grounds that it lacks adequate basis and consitutes :a challenge to Comission i
. regulations as set forth in 10 C.F.R. l 2.104. See also, 47 Fed. Reg. 13750 (1982).
Contention 123 (0perator Experience)
The Staff opposes the admission of this contention on the grounds that it lacks adequate basis. While the assertion is made that the reactor operators lack sufficient " hands on" experience, no information isprovidedwhichwouldsuphortthatassertion.
Contention 124 (Emergency Planning)
The Staff submits that consideration of the admission of this con-tention should be deferred fo,r the reasons set forth in response to Contention 30, supra _.
Contentien 125 (Safety Analysis)
TheStaffopposestheadmissionof[hiscontentiononthegrounds that it lacks adequate basis, is overly broad, and does not appear to be On its face, the contention appears to have applicable to this facility.
been photocopied from some other proceeding, and no information has been provided which would indicate that the scenarios postulated in this While the contention have any nexu ; to the Shearon Harris facility.
Staff does not contend that a p9titioner is precluded from copying contentions riise'd.at other proceedings, the Sta~f believes that some connection to the Shearon Harris facility must be shown before this contention may be litigated here.
In addition, the contention raises such diverse matters as the reliability of WASH-1400, hydrogen genera-
[
tion, QA deficiencies, loss of offsite power, feedwater loss, steam
.2 generator tube rupture, ATWS, electrical wiring failure, core me1ts going through the base mat, reversion of epoxy resins in containment penetrations, etc., the inclusion of which preclude any rational liti-cation of this contention. Further, to the extent that the contention asserts that Class 9 events should be included among the design basis accidents for the facility, it constitutes a challe7e to Commission regulations. See response 'to Contentions 34, 35 and 36 supra.
Contention 126 (Class 9 Accidents)
The Staff submits that this contention is premature until the publicationoftheStaff'sbraftEnvironmentalStatementandshouldnot be admitted at this time. Pursuant to the Comission's Staterent of Interim Policy 45 Fed. Reg. 40101(1980), the Staff will be assessing the inpacts of severe accidents in this draft environmental SeeresponsetoConteptions34,35,and36.
impact statement.
Contention 126x (Transpcrtation of Spent Fuel)
The Staff opposes the admission of this contention on the grounds that it lacks basis and does not appear to be applicable to the Shearon While the contention asserts that the Environmental Harris facility.
Repcrt should discuss spent fuel shipments from other facilities to Shearon Harrit, no information is provided as to how the Environmental Report fails to consider adequately all reasonably foreseeable impacts from spent fuel handling and storage at the :Shearon Harris facility, or that any such postulated shipments from other facilities should be
. anticipatedatthistimeandhavegreaterimpactthanthoseconsideredih-the Environmental Report.
Conter. tion 127 (Management Capability)
Thc Staff opposes the admission of this contention on the grounds that it lacks basis, is vague and not specific to the Harris facility.
Essentially, this contention discusses alleged problems at the Robinson and Brunswick f acilities, ah4 does not contain infomation concerning prcblens at the Shearon Harri$,facili,t, nor does it indicate that the
~
problens experienced at other facilities have not been resolved.
Catentier.127x (Operator Experience)
The Staff opposes the admission of this contention on the grounds that it lacks adequate basis and, on its face, does not appear to be The contention asserts that applicable to the Shearon Harris facility.
inaaequate experience is reflected in #th'e resumes of Catawba plant That assertion fails to raise an issue appropriate for supervisors".
litigation in this proceeding.
Contention 128 (Hydrogen Generation and Control)
The Staff opposes the admission of this contention on the grounds that it lacks adequate basis and does not appear to be applicable to the Shearon Herris facility. This contention appears to be copied f-rom some other proceeding, and discusses the equipment in place at that other facility rather then at Shearon Harris. While the contention asserts that the ignitor system cannot avert injury to the public health and
,~ safety in the event of hydrogen gas formation, no indication is given e.
that the particular system to be used by the Shearon Harris facility is Absent a credible scenario and info ~rmation which would inadequate.
indicate that the equipment to be used at the Shearon Harris facility is See Cleveland inadequate, this contention should not be admitted.
Electric 1111minating Company,et al. (Perry Nuclear Power Plant, Units 1 and 2) ALAB-675, 15 NRC (May 17, 1982)
Contention 129 ( Alternate Energy Sources)
The Staff opposes the' addi.ssion qf,this contention on the grounds that it lacks adequate basis, is inheren'tly speculative and vague,'and Essentially, the constitutes a challenge to Commission regulations.
contention speculates that in,the absence of the Shearon Harris facilty, alternate energy sources would be utilized which would create more jobs No indication is given in this than would be created by this facility.
contention as to what those alternate energy sources will be, or what additional jobs they would create.
Furtipr,, to the extent that the contention seeks to assert the preferability of alternate energy sources, the contention constitutes a challenge to Comission regulations as set forth in 10 C.F.R. 6 50.53(c). See also, ^7 Fed. Reg. 12940 (1982).
Contention 130 (Vessel Fatigue)
The Staff opposes the admission of this contention on the grounds thatitlackk,adeguatebasisanddoesnotappeartobeapplicsbletothe No information is provided which would indicate Shearon Harris facility.
that the scenario postulated is credible for:the Shearon Harris facility and should be included among the facility's design basis accidents, or
.' that the Applicants' accident analysis fails to adequately consider r-consequences of accidents which include those which may result frosethe postulated scenario.
Contention 131 (Vessel Stud Failure)
The Staff opposes the admission of this contention on the grounds that it lacks adequate basis and does not appear to be applicable to the Shearon Harris facility. Ciearly, this contention was copied from some other proceeding, includirig re'f,ehenceg to that other facility's equipment No information is provided which would indicate that the and FSAR.
Shearon Harris facility is subject to the scenario postulated in this contention, netwithstanding' Petitioner's unsupported allegation to the contra ry.
Contention 132 (Control Room Design)
The Staff opposes the admission of t,his contention for the reasons set forth in response to Contention 131, supra.
Contention 133 (Security Plan)
The Staff submits the Board should defer ruling on the admissibility of this proposed contention for the reasons set for:th with regard to regard to Contentions 53 and 54 supra.
^
Contention 134 (Dieseb Generators)
The Staff opposes the admission of this: contention on the grounds that it lacks adequate basis, is overly vague, and fails to raise a
L concrete issue capable of litigation. No information is provided which would indicate that the diesel generators are not designed and con"..
structed in a manner sufficient to assure the protection of the public health and safety, notwithstanding Petitioner's unsupported allegation to the contrary.
Contentien 135 (Financial Qualifications)
The Staff opposes the' admission of this contention on the grounds that it lacks adequate basis a'n.d constitutes a challenge to Connission regulations as set forth in 10 C.F.R 6 2:104.
Contention 136 (Endangered-Species)
The Staff opposes the ' admission of this contention on the ground that it is beyond the scope of this proceeding. This proposed contention asserts a need to consider endangered species habitat. This is a matter of site suitability which was determined at the Construction Permit stage. No basis has been provided, for. seeking to relitigate this issue of this operating license.
Contention 137 (Emergency Preparedness)
The Staff submits that consideration of the admission of this proposed contention should be deferred for the reasons stated in l
l response to Contention 30 supra.
a.
Contention 138(tIonavailabilityofElectricalDrawings The Staff opposes the admission of this: contention on the ground that it lacks adequate basis. This contention alleges electrical
drawings are not available and then alleges that these drawings that PetitionerallegesnospecIfic Petitioner has not seen are defective.
defect in the Harris electrical systems and provides no basis to support his assertion.
Contention 139, 140 (Emergency Preparedness)
The Staff submits that consideration of the admission of these proposedcontentionsrelatiNgtotheevacuationoftransientpopulation during an emergency at the' Har'r.is plailt-should be deferred for the reasons stated in response to Contention 30 supra
, CONCLUSION In its March 9, 1982 " Response to Petitions For Leave To Intervene", Staff concluded that Eddleman had sufficiently stated an interest in the proceeding to satisfy the standing requirements for intervention under 10 C.F.R. 5 2.714. "In'this response to Eddleman's supplemental petition, Staff has found that proposed Contention 3A met the requirements of 10 C.F.R. 5 2.714(b). Accordingly, the Staff concludes that Eddleman should be admitted as a party to this proceeding.
2.
Kudzu Alliance On May 14, 1982, Petitioner Kudzu filed a pleading entitled " Kudzu Alliance's Su'pplement to Petition to Intervene" in which it proposed 15 contentions to be litigated in this proceeding. The Staff's response to the contentions raised by Kudzu follows.
Contention 1 (Health Effects)
The Staff opposes the admission of this contention on the gio'@ds that it lacks adequate basis with the requisite specificity and is 50 vague as to not alert the parties as to the specific concern Kudzu seeks to litigate. The proposed contention alleges that the Applicant and Staff have seriously underestimated the health effects of radiation releases from the Harris facility during normal operations, even where such releases are within exis, ting guidelines. While the proposed contention references the korI? of.particular researchers, it fails to
~
specify the aspects in which the NRC's analysis underestimates the~ health effects of radiation doses. received as discussed in the work of the Also, this vag'u, allegation does not alert the parties as e
researchers.
to what specific concern Kudzu seeks to litigate.
Contention 2 (Risk Assessment / Accident Analysis)
The Staff submits that this contention is premature until the publication of the Staff's Draft Enviromental Statement and should not be admitted at this time. The proposed contention alleges that the Applicants and the Staff have failed to assess the impacts of accidents beyond the design basis of the facility.
Pursuant to the Commission's Statement of Interim Policy, 45 Red. Reg. 40101, the Staff will be assessing the impacts of such accidents in this draft environmental impact statement. 'lThe Policy Statement calls for discussion o'f severe accidentsinapp5icants'environmentalreportsfiledafterJuly1,1980.
Since the report for Shearon Harris was f led prior to that date, no such discussion is necessary in Applicants' Environmental Report.
1
' i:-
Contention 3 (Cost-Benefit Analysis)
The Staff submits that this contention is premature until thei-publication of the Staff's Draft Environmental Statement and should not be admitted at this time. The proposed contention seeks consideration of As noted the economic costs of severe (so-called " Class 9) accidents.
above with respect to Contention 2, consideration of such accidents will be included in the Staff's draft environmental impact statement including, in the words of the Interim policy Statement, " socioeconomic impacts that might be associat'ed"with; emergency measures during or following an accident."
Contention 4(ManagementCairability)
The Staff supports the admission of this proposed contention since it meets the requirements of 10 C.F.R. 6 2.714(b).
Contention 5-7 (Management Capability)
The Staff opposes each of these contentions on the ground that they Each of fail to meet the basic requirement of 10 C.F.R. 6 2.714(b).
these contentions allege that the Applicants lacks the management capability to safely construct and operate the Harris facilities.
Insofar as Kudzu seeks to relitigate the adequacy of management capability to construct the Harris facility, this issue is beyond the scope of this. operating license proceeding except where a petf~tiener alleges that certain specified aspects of construction prevent safe
~
Kudzu has not'done so in these contentions.
operation of the facility.
With regard to the adequacy of applicants management capability to r
operate the Harris facility, the assertions in proposed Contentions 5
~
and 6, concerns alleged problems in managing and staffing the Brunswick Nuclear Power Plant. However, these contentions-do not support a claim that the Shearon Harris facility will be affected by those problems or that a pattern of behavior exists which will affect the facility.
Proposed Contention 7 asserts that Applicants have insufficient staff to safely operate the Shearon. Harris facility along with Applicants' other plants. The only basis for this' contention is the assertion that no specific information exist"s o.teiniti[vidualswhowilloperatethe
~
f acility. However such information is provided for plant personnel in the FSAR at 9 13.1.3 and 13.1.3.2.
Contention 8-10 (Need for Power)
The Staff opposes the admission of these proposed contentions on the ground that the Commission's new rule bars consideration of need for power from operating license proceedings.,',10 C.F.R. $ bl.53(c).
In
~
l addition, all three proposed contentions seek cancellation of the construction of the Harris Plant. Terminating construction of the Harris Plant is outside the scope of the operating license proceeding. As stated by the Appeal Board in Consumers Power Company (Midland Plant l
Units 1 and 2) ALAB-674, 15 NRC
, May 5,1982): -
A licensing board for an operating license proceeding, such as the.one involved here, is limited to resolving matters that are rais'ed th,erein as legitimate contentions by the parties or by the board'sua sponte.
10 C.F.R. 6 2.760a; Consolidated Edison Co. of New York (Indian Point, Units 1, 2 & 3),
ALAB-319, 3 RNC 188, 190 (1976). Pursuant to that mandate, a board can authorize or refuse to authorize the issuance of an l
l operating license.
It does not, however, have general I
jurisdiction over the already authorized ongoing construction
O of the plant for which an operating license application is pending, and it cannot suspend such a previously issued germit.'.
Thus, the Board below was powerless to grant the relief that intervenors requested.
Contention 11 (Financial Qualifications)
The Staff opposes the admission of this contention on the ground that it is barred by the Comission's final rule on financial qualifica-tions 10 C.F.R. ( 2.104.
See also, 47 Fed. Reg. 13750 (1982).
pl~n)
Contention 12 (Security a
~
The Staff submits that the Board should defer ruling on the adnissibilityofthisproposedsecuritypiancontentionuntiladditional information has been furnish'e,d to the Board by Kudzu. The Staff urges that this Board adopt the course followed by the Catawba Board whereby that Board asked the petitioners to consider tha procedural complexities and costs associated with raising security plan issues and to advise the Board within a prescribec time as to whettier the intervenors wished to pursue such issues. Catawba, supra, slip op. at 37-39. The Staff has attached to this response the appropriate pages of the Catawba Board's Orders of April 13, 1982 and March 5, 1982 which discuss that Board's proposal for handling security plan issues. As noted above, the Staff supports the approach taken by the Catawba Board and will urge its adoption by this Board. In these circumstance, if Petitioner intends to pursue this issue, the Staff suggests that it would be appropriate for Petitioner to provide to the parties (Applicants and Staff) and the Board the names and professional qualifications of:the experts to be engaged by Petitioner in advance of the prehearing conference. If Kudzu demonstrates an intention and ability to pursue security plan issues, a procedure
> could then be established for Kud:u to propose specific contentions, the..-
Applicants and NRC Staff respond to them, and for the Board to rule,on them.
Contention 13 (Emergency planning)
The Staff submits that this contention is premature until the availability of draft emergency plans. The issuance of such plans will The Staff constitute good cause of th'e filing of new contentions.
submits that the Board should' defer ruli,ng on the admissibility of proposed emergency planning contentions (s,) until Kudzu has had t.n opportunity to review the emergency plans and then submit specific contentions, if any, with rispect to any deficiencies it identifies in the emergency plans. See response to Eddleman's 30 supra.
Contention 14 (Radiological Monitoring The Staff opposes the admission of this contention on the ground that it lacks adequate basis. All that appears'in this proposed contention reir. ting to the adequacy of radiological monitoring at the Harris plant is a general assertion that certain types of monitors are apprcpriat'; for the facility. Kudzu has not indicated that the facilit;'s radiation monitors are deficient or will. fail to meet NRC requirements.
e "e -
~
Contention 15 (Radiological Monitoring)
The Staff opposes the admission of this: contention on the grounds that it lacks adequate basis. The proposed contention asserts that there must be at every discharge point from the Harris plant of both gaseous
. and liouid effluents, equipment than can analyze not only the rate of emission,butalsothetypeandamountofeachradionuclidebeing\\',
emitted. ho basis is provided in support of this assertion. Kudzu has not indicated that the radiological moMtoring system designed for the Harris facility is inadequate.
CONCLUSION In its March 9,1982 " Response To Petitions For Leave To Intervene",Staffconcludedt$a,tKudz0{hadsufficientlystatedan interest in the proceeding to satisfy the standing requirements for intervention under 10 C.F.R. l 2.714.
In this response to Kudzu's supplemental petition. Staff has found that proposed Contention 4 met the requirements of 10 C.F.R. 9 2.714(b). Accordingly, the Staff concludes that Kudzu should be admitted as a party to this proceeding.
3.
Richard D. Wilson, M.D.
On May 14, 1982, Petitioner Wilson filed a pleading entitled
" Contentions of Petitioner to Intarvene Richard D. Wilson, M.D. in which heprcposed29contentionstobelitigatedinthisproceeding.ElThe Staff's response to the proposed contentions raised by Dr. Wilson follows.
H/ Dr. Wilson's proposed contentions are not numbered 1 through 29; rather, the proposed contention are divided into four broad categories (I-IV) with several subparts: to each category.
L
Contention I (Environmental Impacts)
Thiscontentionallegesaninadequateassessmentof.~theeff'actsof (a)-(c).
releases of chlorine and other chemicals from the Shearon Harris The contention is specific to the plant in issue and the bases facility.
provided are specific. While the wording of the contention could be clearer, the Staff believes it be should admitted in this proceeding.
(e). The Staff submits that the contention has been rendered moot See by the cancellation of the Cape Fear River Intake Facility.
Applicants' Response to NRC Sta,ff "Fihal Environmental Report Review Questions submitted in a letter from M. 5. McDuffie to H. R. Denton dated June 3, 1982.
The Staff submits this contention should be admitted. The (f).
petitioner contends that Applicant cannot demonstrate an ability to maintain steady state water levels in the Harris Plant resevoir without makeup water from the Cape fear River. The applicant goes into evidentiary detail to dispute the Contentions. At'th'is stage of the hearing process, the Staff believes that Contention I(f) is a permissible one.
The Staff opposes the admission of this contention on the grounds (g).
There appears to be that it lacks sufficent basis and is overly vague.
no underlying support for the contention other than the allegation by petitioner that "it cannot be ignored" and that he has personal interest in the contentions, e
ContentionII(EmergencyPlanning)
Where there is no information available:to petitioner with respect to Emergency Planning the Staff recognizes that they cannot frame
-e~~
o contentions.
10 C.F.R. 6 50.47 and Appendix E require radiological energyresponseplanstoprotectthepublichealthandsafetyfohboth onsite and offsite areas. Wake County and Chatham County, North Carolina do not now have offsite radiological energy response plans for contingencies at the Shearon Harris site. The State of North Carolina does have a state plan, although it has not been modified for the site, if indeed any modification.is necessary. The Staff recomends that-consideration of this propos'ed contention be a ferred. Se response to Eddleman'sContention30suprh.,
,[,
Cor.tention III(a)&(b) -(Management Capability)
TheStaffopposesthe[dnissionofthisContentiononthegrounds that while it is apparent to all that Management Capability at the Shearon Harris facility is matter of deep concern to the Comission (CLI-80-12, 11 NRC 514 1980) Petitioner's and Contention Ill is in reality notonsitespecific,butrelatestothe'B[runswickandRobinsonplants.
Unless the petitioner it able to allege some deficiency in the management progran of the applicant and of the NRC supervision of such program, this contention should not be admitted.
Contention IVA (Cost Benefit Analysis)
The Staff opposes the admission of this Contention on the ground that this contention challenges the Cost-Benefit analysis reached by the Comission inthe C,onstruction Permit proceeding and is not allowable at the operating licensing stage.
i
IV.
(Human Factor Engineering).
'~
The Staff opposes the admission of this Contention on the groupds that the Contention as submitted is vague and unspecfic on its face.
Petitioner has requested leave to submit this contention later, after he has had a chance to review the Detailed Control Room Design Receiver, not yet available. The Staff believes that the present contention should be denied, with leave to Dr. Wilson to resubmit, if he desires, after examin-ing the document cited aboy'e.
IV.
(Pre Operational Radiologic Survey)
The Staff opposes the admission of this contention on the grounds that it is speculative and provides no basis to support the assertions that both the facility's preoperational and operational montioring program is deficient.
~'
IV.
(WaterStorage)
The Staff opposes the admission of this Contention on the grounds that it goes no further than to make an assertion that applicant's safety analysis with respect to spent fuel pools is inadequate.
It is vague and unspecific.
It lacks basis and is speculative.
CONCLUSION In its Tarch'9,1982 " Response To Petitions For Leave To Intervene", Staf"f concluded that Wilson had suffficiently stated an interest in the procedding to satisfy the standing requirements for intervention under 10 C.F.R. l 2.714 In this response to Wilson's
- supplemental petition, Staff has found that proposed Contentions 1(a-d) c~.
and 1(f) meet the requirements of 10 C.F.R. l 2.714(b). Accordingly.
the Staff concludes that Wilson should be admitted as a party to this prcceeding.
4 Phyllis Lotchin On May 14, 1982 Ms. Phyllis Lotchin filed a timely pleading entitled
Contentions filed in the Li. censing Proceeding of the Shearon Harris f.uclear Plant."
In said docuine,nt Ms.,L.otchin submitted four contentions.
The Staff submits the following response her proposed contentions.
Contention 1 (Plant Siting). '
The Staff opposes the admission of this Contention on the grounds that this Contention questions the siting of the Shearon Harris Nuclear We are now in an Operating Licensing proceeding, and the Pcwer Plant.
question of siting and a challenge to 10 C.F.R. Part 100 is not an allowable issued without the showing required by 10 C.F.'R. 6 2.758. This matter was determined at the Construction Permit stage and is not appropriate for reliti-gation in the present proceeding.
Contentions 2, 3 and 4 (Emergency Planning}_
These co'otentions are premature for the reasons discussed 19 However, to the response to Eddl'eman's proposed Contention 30 supra.
extent these contentions primarily attack'the Commission's establishment of a 10 mile EPZ in the emergency planning regulations, they constitute a
. direct challenge to Commission regulations as set forth in 10 C.F.R. 650ff7.
and would not be admissible under 10 C.F.R. I 2.758.
'.'t.
In addition to the other emergency planning considerations, Ms.
Lotchin raises a question of monitoring and Baseline data which are so vague and speculative as to render them inadmissable as contentions in this prcceeding.
CONCLUSION
'n its March 1,1982 " Resp,onse To P,etition To Intervene Filed by PhyllisLotchin",theStaffconcludedth$tDr.Lotchinhadsatisfiedthe interest requirenents of IQ C.F.R. % 2.714 in her individual capacity but that her petition for intervention on behalf of the Mayor's Task Force was deficient whether the Task Force is seeking to participate pursuant to 10 C.F.R. l 2.714(a), pursuant to 10 C.F.R. L 2.715(c) or as a r;atter of the Board's discretion.
In its response to Lotchin's supplemental petition, the Staff concludes Dr. Lotchin has not submitted any contentions which satisfy the requirements of 10 C.F.R. % 2.714(b).
Accordingly, Dr. Lotchin's request to be admitted as a party must be denied.
5.
Conservation Council of North Carolina (CCNC).
On May 14, 1982, CCNC filed a pleading entitled " Conservation Council of N a th Carolina Supplement to petition to Intervene" in which The NRC it proposed 21 contentions to be litigated in this proceedings.
Staff's response to the contentions proposed:by CCNC follows.
Contention 1 (Municipal power Agency)
TheStaffopposestheadmissionofthiscontentionontheg'co'inds that the portions of the contention relating to NC Municipal Power Agency's financial qualifications to operate the Harris plc.nt is barred as an impermissible challenge to the Comission's final rule on financial qualifications (10 C.F.R. 5 2.201; See also, 47 Fed. Reg. 13750) and that portion of the contention relating to the Power Agency's management The capability to " supervise.ani,perating license" is without basis.
application filed by the appl $ca'nts for the operating license provides that Cp&1. has exclusive responsibility fo'r the operation of the Harris plant.
Contention 2 (Cost-Benefit Analysis)
The Staff opposes the admission of this contention on the ground that it is an impermissible challenge to the Commission's regulations 10 CCNC C.F.R.951.53(c);seealso,47 Fed. Reg.}12940(March 26,1982).
has failed to make the necessary showing of spe'cial circumstances pursuant to 10 C.F.R. % 2.758 to exempt the application of 10 C.F.R. 9 CCNC has not complied with the procedural requirements of 10 51.53(c).
C.F.R. 2.758 to file a petition, accompanied by an affidavit, which makes Further, CCNC has failed a prima facie showing of special circumstances.
While to meet the substantive requirements of 10 C.F.R. i 2.758.
construction
- costs can be significant at the construction perm'it,. stage
~
when it comes to choosing among alternatives, they are usually irrelevant Even ass'uming that the costs of at the operating license stage.
l cor.struction of the Harris paint have gone up an inordinate amount, the f act remains that those funds have already been spent or are conunitted at this late stage of construction. Thus, there is r.o practical,pgint in,
. q, considering such " sunk" costs now. Cf. Public Service Co. of New Hampshire (Seabrook Station), 5 NRC 503, 530-536 (1977).
Contention 3 (Security Plan)
The Staff submits that the Board should defer consideration of the admissibility of this proposed contention relating to the Harris security plan to permit CCNC to determige.if they wish to pursue this issue as
~
discussedintheStaff'srespons'etoK'u'EuproposedContention12.
The Staff's response to Kudzu's proposed Conterttion 12 is incorporated herein As noted ther.ein, if CCNC wishes to pursue this issue, by reference.
additioral information needs to be furnished to the Board and parties.
Contention 4 (Waste Storage and Transportation)
The Staff opposes admission of that portion of this proposed contention relating to the transportation'~o bs' pent fuel and other materials from other reactors to the Harris plant as being beyond the scope of this proceeding and beyond the Board's jurisdiction and that portion of this proposed contention relating to the safety risks from long-term storage as an inadmissible challenge to the " Waste Confidence" rulemaking. See 44 Fed. Reg. 45362 (1979). The Comission has determined th t during the conduct of the waste confidence proceeding,
" licensing practice's need not be altered." See 44 Fed. Reg. 61372, 61373 (1979). The issue of long-term storage of spent fuel has been barred from licensing proceedings. Virginia Electric and Power Company (North Anna Nuclear Power Station, Units 1 and 2), ALAB-584,11 N.R.C.
451, 465 (1980); Public Service Electric and Gas Company (Salem Nuclear
&ronrrtRfethnien, Unit 1), ALAB-650,14 NRC 43, 69 (1981).
)
- Ccntention 5 (TMI-2 Lessons Learned)
The Staff opposes the admission of this contention on the g'ro'and that it is 50 vague as to fail to alert the parties as to the matters to be opposed or defended against. CCNC contends that the training programs described in FSAR 613.2 do not contain any references to the THI-2 Short Term Lessons Learned. However, CCNC provides no specification as to which specific lessons learned it contends should be included in Applicants' training programs..The remainder of the proposed contention is an expression of generaliz'e'd ' concern.that Applicants will not Such adequately consider the lessons learned from the TMI accident.
vague statements of concern do not meet the specificity requirements of 10 C.F.R. 5 2.714(b).
Contention 6 (Shared Safety Systems)
The Staff opposes the admission of this contention on the ground that it lacks adequate basis. The contention alleges that Units 1 and 2 share safety systems and there is no analysis of the effect an accident at one unit will have on the opertion of the other. CCNC has not specified what analysis needs to be performed or in what way the analysis contained in FSAR section 3.1.5 is insufficient.
t Contention 7 (Population Figures)
The Staff. opposes the admission of that portion of this p"roposed contention which' claims that population figures beyond 10 miles from the HarrissitearenotprovidedintheERandthatthepotential radiological impacts on certain named cities are ignored as lacking i
Population figures and projections are provided in Table 2.1.2-3*..
bases.
of the ER out to a distance of 50 miles from the site and includ'es'.~each of the named cities indicated by CCNC. Petitioner has not indicated in what way the doses to man set forth in Section 5.2.4 of the ER are incorrect. Thus, there appears to be no bases for CCNC claims.
In addition, CCNC assertion of the need to consider adverse effects of radiation contained in a rulemaking filed by another party is not appropriateforconsideratibninthisindividuallicensingproceeding sinceitalreadyhasbeenpla'ced'intofonsiderationforrulemakingbythe Commission.
Contention 8 (Miscellaneous)
The Staff oppoese the admission of that portion of this proposed contention which claims that population figures beyond 10 miles from the Harris site are not provided in the ER and that the potential radiological impacts on certain named cities are ignored as lacking Population figures and projections are provided in Table 2.1.2-3 bases.
uf the ER out te a distance of 50 miles from the site and includes each of the named cities indicated by CCNC. Petitioner has not indicate in what way the doses to man set forth in Section 5.2.4 of the ER are In Thus, there appears to be no bases for,CCNC claims.
incorrect.
addition, CCNC assertion of the need to consider adverse effects of radiation coIftained in a rulemaking filed by another party is"not appropriate for ' consideration in this individual licensing proceeding since it already has been placed into consideration for rulemaking by the Comission.
Contention 9 (Emergency Planning)
TheStaffopposesthisproposedcontentiononthegroundthatI.it' '. ~
seeks to raise an impermissible challenge to the Comission't emergency The Contention asserts that emergency planning is planning regulations.
inadequate because "it does not include, among others, the effects of an accident at SITNPP in Orange County. Orange County appears to be located well beyond the 10-mile radius for which the regulation's~ provide energency planning must be pr.ovided.
10 C.F.R. 6 50.47(c)(2).
~
Contention 10, 11 (Emergency Planning)
The Staff submits that consideration of the admission of these contchtions should be deferre, for the reascns stated in the Staff's d
response to Eddleman's Contention 30 supra.
Contention 12 (Jordan Lake Dam Impacts)
The Staff submits that this proposed contention meets the.
~
requirements of 10 C.F.R. 9 2.714(b) ano should be admitted.,However, that portion of the proposed contention relating to Cape Fear River Intake Facility may be moot since that facility has been cancelled.
Contention 13 (Impacts on Cape Fear River)
The Staf'f subn)its that this contention has been rendered moet by the cancellation of the Cape Fear River Intake Facility. See Applicants' Response to NRC Staff " Final Environmenta1 Report Rev iew Questions
~
submitted in a letter from M. A. McDuffie to H. R. Denton dated June 3, 7
1982.
. Contention 14 (Hydrilla Verticillata)
TheStaffopposestheadmissionofthisproposedcontention'.oh',the ground that it lacks adequate bases. No bases has been provided that hydrilla verticillata could clog the intake structure other than the
- However, general allegation that is is present in the on-site' reservoir.
the Applicants' ER indicates that the intake structure is located in deep CCNC with the water having a certain velocity into the structure.
water has provided no basis to bel'ive hydrilla verticillata can cause a problem
^
under these conditions.
].
Contention 15 (500 Kv Transmission Line)
The Staff submits that'this contention has been rendered moot by the cancellation of the Harris-Harnett 500 kv thransmissioa line. See Applicants' Response to NRC Staff " Final Environmental Report Review Questions." Supra.
Contentions 16-18 (Radiological Monitoring)
The Staff opposes the admission of these proposed contentions on the grounds that they lack adequate bases. These proposed contentions raise a concern with regard to Applicants' operational radiol.ogical monitoring CCNC has provided no basis for its claims, that additional program.
analyses are required at the sample points listed in these contentions.
Contention 19 (Rish Assessment / Accident Analysis)
The Staff submits that the Board sho'uld. defer ruling on this s
proposed contention until issuance of the Staf f's draf t envrionmental
impact statement for the same reasons discussed in the Staff's response -(.'.
Whilethisproposedcontention' tai,ks to Kudzu. proposed Contention 2.
only of the evaluation performed by the Applicants and Kudzu proposed Contention 2 concerned evaluation perfomed by both Applicants and Staff, this shculd not change the result.
Contention 20 (Decommissioning Costs)
The Staff opposes th..e admission of this contention on the ground that it is bar, red by the Comihs50n's f'inal rule on financial 10 C.F.R. 5 2.104; See a' iso 47 Fed. Reg. 13750 (1982).
qualifications.
The Comission stated that the elimination of the financial qualification review included the eliminat' ion of any consideration of decomissioning findings. 47 Fed. Reg. at 13751 Contention 21 (Management Capability)
The Staff opposes the admission of this contention on the ground This contention " challenges the adequacy of that it lacks adequate bases.
Applicants management and engineering personnel to manage the Harris plant on the basis of a report relating to problems encountered at the l
Brunswick Nuclear Power Plant. However, CCNC has not provided any basis tosupportaclaimthattheHarrisplantwillbeaffectedbythose problems or that a pattern of behavior exists in Applicants organization which will affect its management capability.
i 1
-w
-~
CONCLUSION
". ~
In its March 9, 1982 " Response To Petitions For Leave To Intervene", Staff concluded that CCNC had sufficiently stated san interest in the proceeding to satisfy the standing requirements for intervention under 10 C.F.R. % 2.714.
In this respo'nse to CCNC's supplemental petition, Staff has found that proposed Contention 12 meets the require ents of 10 C.F.R. 6 2.714(b). Accordingly, the Staff concludes that CCNC should be, admitted as a party to this proceeding.
~
PETITIONER OF CHAPEL HIL ANTI-NUCLEAR GROUP EFFORT (CHANGE) AND ENVIRONMENTAL LAW PROJECT (ELP)
By " Supplement to Petit' ion for Leave to Intervene" dated May 14, 1982, as amended by " Amendment of Petition for Leave to Intervene" dated May 14, 1982 CHANGE together with ELPE proposed 80 contentionstobelitigatedinthisproceeding$
CHANGE, ELP and Daniel Read had separately petitioned to intervene 12/
in this proceeding. ELP and Daniel Read have filed Motions to Consoidate with CHANGE. The Staff has no objection to the consolidation of the Petitioners.
The Petition at page 18 indicates that the Contentions at pages 20-2 The Staff
-13/
(and numbered there as 1 33) are Contentions 47.to 79.
refers to those Contentions by their new numbers.
P
'e e
Contention 1 (Health Effects)
TheStaffopposestheadmissionofthisContentionontheg' coll.nds that it raises issues which are not specific to the Shearon Harris It is a wide ranging generic attack on present guidelines and facility.
standards relative to the somatic and genetic effects of radiation This contention cannot be litigated in any individual releases.
licensing proceeding.
Contention 2 and 5 (Risk Asses'sment),.
The Staff opposes the admission of these Contentions on the grounds that they attempt to raise _the same issue - namely that the probabilistic studies relied upon by the Npplicant pose an unacceptable risk. They do not relate to the Shearon Harris facility. There is no attempt to specify a particular accident relative to the subject facility.
In Petitioner proffers no credible accident scenario to consider.
addition, the Applicant did not utilize a'probabilistic analysis in its FSAR. These contentions should be denied.
Contentions 3, 4, 15, 41, and 46 (Emergency Planning)
These contentions are premature for the reasons. discussed in response to Eddleman's proposed Contention 30. As the radiological response plans for the affected counties are submitted to FEMA for review, the petitioner should be giv'en an opportunity to refile its Emergency Plannin"g Contentions Consideration of'the admission of these contentions should be deferred for the reasons set forth in the response to:Eddleman's Contention 30 supra.
Contentions 6, 7, 8 and 13 (Financial Qualifications)
The Staff opposes the admission of these Contentions on the.gr.ounds that while not necessarily couched in exact terms defining them as such, these contentions, in effect, question the financial capability of the For the reasons set Applicant to operate ano decomission the facility.
forth in cur response to Eddleman Contention 58, oppose the admission of these contentions since they lack adequate basis and constitute a challenge to the Comissions, regulations as set forth in 10 C.F.R.
See also, 47 Fed. Res,.'13750,.(1982) 6 2.104 Contentions 9 and 10 (Fuel Transportation)
The Staff opposes the a'dmission of these Contentions on the grounds that they deal with the environmental effects of fuel storage at the They are facility and the shipment of fuel from Brunswick and Robinson.
an impermissible attack on 10 C.F.R. Part 51 Table S-4 and pursuant to 10 C.F.R 5 2.758 must be denied. The contentions state that Table S does not apply becuase of the location of the d'estination of the spent The table does not reflect Comission consideration of fuel shipments.
the costs attendant upon the transportation of spent fuel in a generic manner and the actual ultimate repository of that fuel is irrelevant.
Contention 11 (Long Tenn Spent Fuel Storage)
The Staff opposes the admission of this Contention on the grounds that it lacks the specificity required for a valid issue in this proceeding.
The petitioner has no bases for the long-term storage assertion and has suggested no error in the FSAR analysis in Section 9.1.2.3 or ER %
(.
5.
If I prepara 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 information in order to help me prepare those papers has executed an affidavit lika this one and has agreed to abide by its terms.
Copias of any such affidavit vill be filed with the Appeal Board before I reveal any protected information to any such person.
e 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.
7.
I shall keep a record of all protected information in 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 Consission employee designated 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 protected information they contain, but,in no event-later than the i
conclus ion of this pi'oceeding, I shall deliver those papers and materials i
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 lifetime of the plant.
8.
I make this agreenent with the following understandings:
(a) I do not vaive any objections that any other person m'ay have to executing an affidavit such as this one; (b) I will not publicly discuss l
or disclose any protected information that I receive by any means whatever.
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CIIe as 11 tmC 775 (1980)
CU4H4 UNITED STATES OF AhERICA NUCLEAR FEGULATORY OOhMSSION COMMISSIOSERS John F. Ahearne, Chairman h OIIInsky Joeoph M. Hanserte Potor A. Brasilonf in the Matter of Docket No. 50 275 OL Sut OL PACIFIC GAS AND ELECTRIC COMPANY (Diablo Canyon Nuclear Power June 11,1990 Plant, Unit Nos.1 and 2)
Acting upon petitions to review ALAB.592 Aled by applicant sad intervenor, the Commission upholds that part of ALAB-592 requmng that the security plan be made available (under a protective order) to intervenor's counsel and expert witness; rules that a protective order issued by a board may not constitutional!y limit public disclosure ofinformation obtained outside the hearing process; and waands the matter to the Appeal Board for d,ecision as to wluch of two specifad procedures should apply to the daclosure of such outside information.
RUIIS OF PRACI1CE: SECURITY PLANS 1
The adequacy of a nuclear facility's physical security plan may be a proper subject for challenge by intervenors in an operating bcense proceeding. Consolidated Edson Coepony of New York (Indian Point Station, Unit 2),7 AEC 947,949 (1974). Commission regulations contemp-late that sensitive information may be turned over to intervenors in the prae-bg under appropriate protective orders.10 CFR 2.790.
e 175
P-
RUIES OF PRACDCE: PROTECITYE ORDERS Protective orders may not constitutionally preclude public d-i== tion of information which is obtamed outside of the hearing process. See Rodgers v. United Stater Sseel Corponstlog, 536 F.2d 1001,1007 (3rd Cir.
1976); International pro & cts Corponstion v. Xeoar, 325 F.2d 403,408 (2d Cir.1963); and In Re Estkig 598 F.2d 176,195, n. 45 (D.C. Cir.1979).
RULES OF PRACDCE: PROTECITVE ORDERS A person subject to a protective order is prohibited from using protected information gained through the beanng process to corroborate the accuracy or inaccuracy of cutside information. Moreover, the Com====4n discour-ages participants in Commission prMgs from gathering protected information from independent means and publicly diaa -iaating such information.
MEMORANDUM AND ORDER On April 11, 1980, the Appeal Board issued a Second Prehearing Conference Order (ALAB-592) directing that representatives ofintervenor, San.Luis Obispa, Mothers for Petce, be provuled access to a sanitized version of the Diablo Canyon physic.al scurity plan. The Board directed that the plan be released to interveaor's counsel and to its expert witness under the terms of a protective order and upon execution by these individuals of an affidavit of non-disclosure. On April 14,1980 the applicant, Pacific Gas and Electric Company (PG&E) filed a motion with the Commission seeking a stay of the Appeal Board's order and also filed a petition requesting Commission review of the Board's decision to release the plan to the intervenor. PGAE opposes turning over the sanitized physical security plan to the intervenor because it believes that there is inadequate assurance that one of intervenor's counsel will abide by the terms of the affidavit of non-disclosure. On April 21,1980, the Commission issued an order directing that the sanitized physical security plan not be turned over to the intervenor unless and until the Commission so directed.
. On April 23, 1980, intervenor filed a motion with the Commission 776
- - ~.
r==i iaa to requesting a stay of the Board's order and petitioning the review the Board's docuion. Intervenor believes that one of the provisica
.'-H
- of the proposed amdavit ornon<hsclosure is Es--'Interv pleading opposing intervenor's motmos; and the NRC staff Aled opposing the requests of both PGAE and the interveno
,*-t. has domed the petition for review filed by PG&E, and has granted the petition for review filed the intervenor. Because the Commiamina has acted upon the petition review, the motions to stay the Appeal Board order are smoot and th l
Commission willnot rule upon thesi.
In its petition for review PGAE argues that the physical escurity p i
should not be made available to petitioners because the best method preventing public duelosure of this sensitive dar====t is so m ca==tamian available to the fewest number of individuals possible. The en==i recognizes PG&E's concern, but emphasizes that intervenors in I
(
sion proceediny may raise contentions relating to the adequacy o and that the applicant's proposed physical security arrangeme information may be turned over to intervenors in NRC proceedings un In this procee&ng the Appeal Board in l
appropriate protective orders.8Al.AB-410, 5 NRC 1398 (19 j
Order of Apri! II,1980(ALAB-592), has set forth uidelines on when S
under what conditions physical security plans may be made available to intervenors. The Comminaion has reviewed these orders, and with the o exception noted below, endorses the guidel interpreting the law and balancing competin Canyon physical security plan wisely.With respect to t one ofintervenor's counsel is likely to abide by the terms of the protectrve order and amdavit of non-disclosure, we noted that the individual ha assured the Appeal Board that he will abide by the terms of the p order and the amdavit of non disclosure. As a membe Supreme Court of California, he must be ac law could be placed in jeopardy. We believe this possible sanct m===had Edson Canymiy of New Yara (taean Point Station. IJait 2),7 AEp f h Alonuc Emergy 8De regulations are commstent with the policy ast forth in Secton 181 o t e (1914).
Act.
assurances, are sufficient grounds to conclude that the counsel will abide by his commitments. We therefore direct that PG&E make the sanitised version available to the latervenor.
Intervenor challenges a provision of the proposed affidavit of man beta.
sure which would prohibit those subject to the protaceve order and affidavit of noti di-L= Lee from publicly discussing or aa==*ating upon protected information which is'obtained (a) outade of the course of this praraadmg or (b) which has been publicly dietr=ad by others. Inte:venor argues that this limitation violates the First AW-t of the Constitu-tion.
The Comminion agrees with the intervenor. In several recent cases, the courts have made clear that protective orders may not constitutionally preclude public dassenunation ofinformation which is obtained outside of the hearing process. See Rodgers v. UnitedStater Steel Corporation,536 F.2d 1001,1007 (3rd Cir.1976); Internationalprodets Corporation v. Koonr. 325 F.2d 403,408 (2d Cir.1963); and In Ae Halkin 598 F.2d 176,195, a.45 (D.C. Cir.1979).
In reaching these conclusions the Cn==i== ton wishes to emphamse two points. First, the amant making the public disclosure is prohibited from corroborating the accuracy or inaccuracy of the outside information by using protected information Sained through the beanng process. Second, the Commission discourages participants in Cn==:+n proceedangs from Sath'ering protected information from independent means and public!y disseminating such~informatioq, Qiaarman Ahearne and Commi=ioner Hendrie believe that before intervenors publicly disseminate protected information gained outside the beanng process they should be required to establish to the satisfaction of the board presiding over the Commission prW;ag - in the present case the Appeal Board - that the information was in fact gained outside of the hearing process. Commissioners Gilinsky and Bradford do not believe that the parties should be required to secure prior Appeal Board clearance. ney believe that any such clearance procedure is an unconstitutional prior restraint. Because the Commission is divided on this matter it remands this issue back to the Appeal Board and directs the Board based on its own
, reading of the law to select one of these two options. After matmg its decision the Appeal Board shall modify the affidavit of non disclosure so that it conforms with the Board's decision. He Board's decision will not be reviewed by the Commission. As soon as intervenor's counsel and witnesses 778
~
~ ~ ~ -
N have executed a revised amdavit of =
'S*-
_., PO&E is to make the sanitized version of the physical security plan available to these indrviduals.
It is so ORDERED.8 For the r-SAMUEL J. CHILK secretary or.the comminion Dated at Washington, D.C.
this lith day of June 1980.
ADDITIONAL VIEWS OF COMMISSIONER BRADFORD I agree that the First Amendment prohibits an affidavit which forecloses public comment on protockd information obtained outside the proceedmg or disclosed by others. Such a prohibition constitutes a prior restraint on the speech of the intervenors in violation of the First Amendment. Aa(gers
- v. Unised Stater Steel Corporation, 536 F.2d 1001,1006 (3rd Cir.1976). To cure this infirmity, the Commission amends the affidavit to remove the absolute restraint on discussion ofindependently obtained information, but leaves open the possibility of a prior restraint upon the speech of the intervenors in the form of Appeal Board clearance prior to public comment.
I do not agree that this prior restraint is permissible. It is clear that the First Amendment sought to protect not only against absolute restraints, but also against restraints which might or might not through governmental processes be subsequently hfted. See Aest v. Mmnesota ex rel Olson,283 U.S. 697 (1931).
Furthermore, this prior restrain't would be unreasonable and hiisisa-tory in its application. An enmmation of such a restraint order reveals the foBowing:
1.
De pur}.cee of such a prior restraint order must be to prevent disclosure of features of the security plan. However, our order explicitly recogmzes that the possible sanctions flowmg from die %e "are sufficient grounds to conclude that the counsel will abide by his commitments." It is not clear how the proposed restraint will be any more effective than the sanctions already in place.
- 2. De amdavits need only be signed by the intervenors, not by utility personnel or NRC employees. No showing has been made that'the intervenors are inherently less trustworthy than other persons who have 8Comminioner Kennedy has recused himselffran this proose&ng.
- - - - ~ ~ -....
% ~.
seen the plan, yet they are singled out. Utiliti -f:gs are under ao NRC sanction whatsoever Aosa &nclosing FAis infonnation, and they certamly would not be required to come to the Board prior to docussing the plaa.8 n===i-ian staff would face sanctions if they were stin with the C= ' *:=. but they would not be subject to the proposed prior restraint and would be hoe to na==nar upon pubbely available infonnation regarthag the security plan.
In wrd ka, I agree that PGAE should be required to turn over the physical security plan to the intervenor. I would support a protective order which provules for an afrulavit prohibiting disclosure of the protected information gained through participation in this proceeding. I would, however, require the same affidavit from other attorneys and witnesses.
3
'It is not enough to argue that the utibry is the to release its own propnetary infonnation, for the pubbe health and safety consequences are aD that are aDeged tojusufy the uneasurel bein taken.
m
l Federat Register / Vcl. 47. No. C3 / Friday, March as, test / Rules and Regulatises ATTACHMEN 12940 l
su au
.. : Amw. 'odcais it ute(bXs)(i ur)and (fgs).
apractwomain Apresa,se m bereby sivan the suendment of 35Js and ss.3f,d) are iss paa m nem eestrasT:
sec.
Nuc}ee 9'd y
mi ston's 1st es Sta). see, as am (48 USC.
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K4.3Li% 88 % 85.81 EE 9BB h===fa='m Washkagles.
EBE Seetion 34100 of to CFR 38 hats
/
j Telephaest (301)m 1
groups of medical uses of byproduct
& Remove the autherhy die heart espesuaaisans,'
matertal that have almCar requiremente foe uoer tralning and expertemos, leGowing 6I E4. 35.12,38.14.
Jecihttea and equ!pment, and radistico 8E.300,the authodty citation Bedermedof toBale
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safety procedoes %e urpose of this the undesignated centar hen O
s, test.6e *h r
youping is to redoce a[m!nistrative "Specla! Requirements for Tale
- gnAes FM W MPR I / costs by eliminating b need for IJcanases," and the authoeity dtaties steep) for pubbe comanent, proposed Ucensees to wak an amendment to their anBowing the undes!gnated osseur amendment to toNort at ems hcense eoch time they wish to use an hea ding reading "Misadalaistretles ngulauona. As escassed in to editional redfopharmaceuticalin a Reports and Raoss" statement of ocasidersuoms wW&
group for which they are licensed. As 5.Section 35.100 is amended 88 companied the proposed ruis, to I
I new rediopharmeceuticals, soutees, removing the word "and'*
PuPoM of these samadment le to l
devices,and use are developed and paragraph (Q(4)(x!). and a srnew -
avoid annecessary consideraties of approved by FDA. they are edded to the paragraph 8)(4)(xil] to read tesues that age not hkely to 10t the east-appropriate group in i 35.180.De FDA I8C88 88Mdu88 of *888888 benefit balanos eEsceively hae secently approved a %w Drug
- d eliminatingneed or power and Application" for a reagent Idt that is
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alternative anergy source laense tram used to prepare the
- 4) * * *
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enesideration at b operettag license radiopharmaceutical, technetium com A4) * * *,
stage.In scoordance with the labeled disofenin, and the use of this Commission's NEPA responsibuities, the reagent kit is hereby added to Group III.
(zil) Disofonisc and need for power and alternative amargy As described n NRC's medjcal poDcy
. statement that was published in the Deted etBethe da.MD,this day of sources are resolved in the seestruction Federal Regisier on February 9,1079 (44 February test.
/
permit proceeding.no *a==taalaa r
F1t 8:42). the NRC relles on FDA for For the Nuclear Commissien-stated its tentative ecochasion that wbDe approval of safety and effective 6ess of wglina l.ntda, 6ere is no diminution of the hnportance radioactive drugs ne Commission has ApeuvivDhector cherstdens.
of these issues at the onestructies t
found that good cause rsists for om!tting pe n m arss se ami permit staae, the situa6on is see that at 6e Mme ofb marsung beense notice of proposed rulemaking and enAsesenes peoceedhg bTp at waad be needed to pubhc procedure thereon.because it would be contrary Io the pub!Ic interest either meet increased energy needs or to delay the use of thisTDA.spproved te CFM Part 51 replue dde tus unoWed smedag bee the ame bees Need for Power and After5stfee capacity and that no viable alternatives e re av com e u ar p an from restrictions under ons Energy faaues in Operating Usenes cunently in efrect. it may e
Prococenga e c e withont the customary 30. day AetwCV: Nuclear Regulatory operating Deense. Past axperience has shown thfe to be the can. In addition.
Co==laaia" Pursuant to the Atomic Energy of tMs conclusin la urnely to change acTiosc Final rule.
1954. ee amended. the Energy even if an alternative is shown to be I
Reorganisation Act of1974, as ended, smaan%e Commininis amnang marginaUy environanntaUy supador in l
and section 553 of Title 5 of the sited Ita reguistions in to CFR Part 51, comparison to operetion of a nuclear States Code, the fo!!owing aWrndments
" Licensing and Regdatory Policy and facility because of the economic to Title 10 Chapter 1. Code pf Federal Proceduns,,for Environmental advantaae which operation of nuclear Reguistions. Part 35 are published as a Protection. to provide that, for National power plants has over av.allable fossil document subject to codification.
EnvironmentalPolicy Act(NEPA) generating pf ants. An exception to the PART 35--HUMAN USES OF Purposes, nud for power and rule would be made if,in a particular alternative energy source issues will not case, special circumstances are shown SYPRODUCT MATT 7tlAL be considered in operetinglicens*
in accordance with 10 CFR 1.78g of b
- 1. De authority citation for Part 38 is proceedinas for nuclear power plants. In ComWuion's resdauens*
revised to read as follows:
addition, these Issues need not be Comments were Invited particularly Authodty Secs It.1st.1e2. tes.
Stat.
addressed by operating license en the foUowing lasses:
ess osa. a53. eu. as amended (a2 U C 2111, appI! cants in environmental reports to (1)Whether two articles, one by 2201,2232. 22s3). sec. act. es Stat vb42. as the NRC, nor by the staffin Amory and Hunter lovins and b ether amended by Pub. L 06-3,se Stat 413 (42 environmental impact statements (EIS).
by Amory Iovins, Hunter lovina, and USC 1
in operedng Ecense proceedings.De
~
For the see of sec. 223,08 Stat. 958, purpose of these amendments is to Iaccard Ross, correctly state that a as amen (42 U.S.C. 2273); il 35.2.
avoid unnecenary consideration of mixture of conservation and alternative 3514 (b). (e) and (f). 35.21(a) as.22(a).
inues that are not Illery to tilt b cost.
sources would usually cost less than 35 24. and 35.31 (b) and (c) are lasued benefit balance.%!s rule affects operating a nuclear plant, and therefoes under sec.181b. es Stat. see, se applicants for opereting I! canoes for a newly completed nuclear plant abould amended (42 U.S C. 2mt(b)); and nuclear power piants.
be written off; and
f M 81 Tederal Register / Vcl. 47. N2. se / FHday. March as, test f Rules'and Regulatis
- am kraer east hisparets Gas esamentes sesend est to
'- for safshe toss issues
~
p)Whether the rule.If plaats.81f aesservemmalonus a Ter.lSJIB es weeman hes should be applied to ongoing demand then stuity enspaales tube the hfesenstfes stsuldis un nfty.thne lettm M public comment most expenalve ting plaats airlias -
proceedinge.
bessene ter babsee to Bret. m s a ted ancient plant would defset es purpose afes wm rooalsed on the proposed rule.
would be amed as a substitute farless nine comunantare supported the by sabha es easpse a
Twenty d rule change, and twanty foer economical tlagesposte.
- hereform, commisslan comalades seguire Isamesto be tomand asis propow wm opposed.nm were a low that studies such as those diedla to Se mas under amuss suise, nietively minor modiBeations proposed rule aboundbe ruBed as to Jtesponse-%e tw d== doseest e
ne mon s!gnificant comments and tbs reach condastons on compareese ayw.Sectlasases(ciregdieses-for the promulg_ation of the Commission responses are gfvanbelow, energy costs,rotbar than me1sehe.
peti party to make a gedes hele abowing iapplantes of to Ross artidos, segulation to a parWcalar aspent of en Osaunente--Tem *%
we 3d e.g es,e, es Comments and Raspens Comment-Right commentes, eE of addrmed the taeus of whether 6 esesy whom fevored the rule ch
. If a ed, abound a to for which es vde was nisis a mech sertsaar expremd viewe on the by B
ym
^
and toleeues er oesteetisms b e 6e servest conurvstion plus other emerar furens herein.nne commentere ube opposed ist raising need fa pesar'eT lovins and Rosa which state that een wually nault in town oost than 6e rule commented that alternadve ensegy eespues b 08, conditicas sinos the CP wervest A
l operetion of a nuclear plaat.8 he act making the rule appliasble to 6at no mentica was made of wbster Oneunens-Fee comunestersasted comments wm dirested to vartens pending OL proceedlage He aspects of these articles which la abs commentare who favor the proyesed need for pww and dternaeve enougy '
commenters viewa contain errore andrule made ra-ts which ena he sources nemled uk addresseth omiulons. Signif! cant deffdendes mentioned were that the analysk le far rummarised as
- that the reasons. PERC's opmungEcense savironessh!
for elim!aating the attbs OL tapact statessants (EIS'st.%e trom complete,it contains questionable costs !!gures, fans to discuss the rete at, stage won no leu valid for emesing suproued conown wu M eDense en which couervstaan and alternative cases than for future y.-u 6en loom may be latwproud emens energy sourcea could be employed, falls Aessoase-De Commissioebellem
&at they most etGl,be treeted tsEIB*a.
to discuss the institut!ana! measures that dare is no ao
!!ing reason whp gg
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,,g eandaYso b
thtbanIsaure e
trea environmental consequeowe and proceedings. Since need for power and sukent proped at b,,,,g societal coets of these actions.Same alternative anargy source issues were y,,,,* *I'8" fuel ***
ede has a commenters etsted that the approach in considend at the CP stags Iera5 these articles would requ!re coerdon of pending OL proceedings. la the absense
[g, ggm a
stuities or final customm to schfeve the of special circumatances, eere is no M W h h h esEIS h energy use mix advoceted. Mr. AssorF amore reanon to believe that thebe lassee
,,gfy,, g y.g g
tovins was a commenter osibe would tip the NEPA cost-benefit balance ** usual ** *" * *
- M proposed rule and reiterskd the agalnat tuuance of the o Eng Boonee that an alternative exists thatis' condustons stated to the two artidea. ga p,nding cam aan in ture cases.
[Co a
wesid as He etsted that de detaDe of his Accordingly, the rule, when effective'e sted under NEPA to address theos WGI *pg to pendlag openungBem ob g%, N,
."x*n is** 12 lts a m e tallu Pect
~
made him confident this findag would
- 3ounefite-%ree con ments were d$
the losess in l
be supported made on the vision aHowing ased for Commis on i
6e en entalimpact etaw and evalue th se comments and furtbar C,$se would nguire the Bcanse opphcast t under Am 8"iewed the two eccles.He example of how I 2.758 conid be used to ad nsa m tems bits Commission doea not necesearily agme rafse need for power and alternative en%nmentalnpet as d sonroe taeva was given h the II " **0 "
A'**#U"8IF' to make clear that wbD wtth the varied comments on these onehmentaryInformetion to to
(
articles. How ev er, the Commisef oe flads been revind Su'p discun a daeed h paw and i
Fdsed rde ** *
- epuddstances oceld exist Efer alternadu margy souns h h the articles Isch sufficient analysts and documentation to support the arguments made. Monover, the Commisske is set example'it could be shown that sudear gene @ not nudedin enh,
c ocid estaS statements and reports at the operstlag aware of any other reliable and plant 6an s$gnificantadvem I *"
- E****** "*b documented information dich confhus anexpe that the Lovine Ross conclusions are environmentalimpacts or not en nquind de Commisdos.he se this change is to the vahd. On the chr hand subetantial environmenteDy and voooomlanDy information eststa, such as that died la supwke 4twnauve exiskd* Se fmmisston the same tag to the Supp!ementary Informatism of he sonsider environmentalissues ta syscial
.,,, g,,,, m y % a,,,,
Circumstances when no beartsg is, proposed rule, which shewe tbst anolear A.nastMsawi Egwaame-sePa Dummmeur tagg involved or before a heating as it has tseeirer.amem/ w e Amary a.d %uer tavina. Ans potismuuseeg av.a of cinair c.tMeer under i 2.758 where a beartes to a.est, rA. w.d,., u.a.m d.er/aswr askar a sv Querec et6.sare.
Aeman We r war a mias;.an,waIssee. py' hvelved.
tess s
tsee r, esas d r wous to ut.und Amarr.
s t se s.s. case s 0,atter et r).se k m Commente-%e NaturalRaeoereas t,um t. %.,t,,tm dt mdassa,
- Mrs Mawh,aar uma pos/museiso/
Defense Council.Inc. (NRDC) staasd we, %..n.a.m asians.asesi A8stri so-us7-tr.(5 mmm.seems ass,
12942 F'ederal Regist:r / Vcl. 47. Ns. se / Pdday, March as, test / Rules ead Regulettens I
Aeonedin6. the "-=+ behoves leasee k ladividual M.procesteps is that the proposed rule le legally 1
r impermissible under NEPA. NRDC's
&at the rule aa ph= wie the met assessary.
behef that the pro sed ru!e is legaDy requirements b IGPA.
u,m trnperm!es!ble un er NE"PA !s grounded Onaurienkfour commenters asted
- -' p' Iw on its assertion that the Conunfesion's
&et the proposed rule tive FlandbGity Act of180G,5 USC
).
ed ast h sonordanos with &e interpretation of Cohert Chffe mention &e s!!adnation of Coodinatire Coaunirsee, bic. r. AJC.
site analysts at the OL stags, even to Comatulos hereby eardes est 449 F.2d 110s (D C Ctr.1971) and Unior W &fs b almdy been skabeled als rule wElact have a sigsament of ConcernedScientists v. AlC. 400 by rule change (48 FR 3 esse).
economic inspect on a embetendel..
F.2d tone (D C Or.1874)la the Aesponse-De ambates k to ambber of smaR emudes.He rule... I supplementary Information which propoed 4 of b tugsw h 6 regatrements for o% sheer eBadnahe certah accomperded the pro d rule is overty 31.21 which sliminates the canalderation wnere er me of a!temative sites at the OL stage has power plants Boensed purement to broad in addf tion.
asserts the rule does not comply with the been resected in the Baal rela. k esedoeslas and106b of the Atomic Commiselon's duty under NEPA to adeh a M e okahadse W Act, u amded,42 UAC. mas, consider afternatives at the opereting of consideration of alternative einse h
'M84b. Ownere of secIsar power plants on ne Comm!s:f an disagrosa environmntalimpact statements has am not wisin the drRaises of smaB been added to i 51.23(e 10 GR 51.8a(b) ' beetness found in section 3 of the tsaaB and continues to believs that those ca ses support the p sition that NEPA which eundnates cons!
tias of Bestuos Act.18 UAC es2. er 6 does not requin the mmlaston to a!temative altes at the OL hearing to SmaD Business Sise Standarde set os is alma a part of to aarth his GR Part12L l
dupUcate at the operating !! cense stage Its review of alternatJvee absent new mmission's Accordingly, the Comumlesian is information or new develocments. His Coaunente -nree commenters who amending its regulations in to GR Part is mede c! ar in Union of donoerned hvored the rule change stated that M to provide that need for power and Scientists wherein the Court exp!jcitly
. Alpmic Safety and IJ Boards allemative energy ecurce laense wGI act stated "we expressly said in that a6y be able to initiate cons tion of be er.ssidered in operating Boemas I
opinion (nferring to Calvert Chffe) that need for power and a!!smative energy proceedings for suelear power plaats fuu NEPA consideration 'need not be sources,(evo sponte) even thoogb
'and need not be addinsed by opereting dup!!cated obsent new information or parties to the proceeding may not.
Bernse app!! cants in environmental Response-ne hmf==fon does not reports submitted to the NRC aor by the new developments, at the operating r
licanse etage.'" 8 UCS at 1079.
he!!sva that it is nocesoary to prohibit stafin environmentalimpact j
Alternstive energy source issues receive Beaming boards from bringing op isones statements (EIS's), at b operating and will continue to receive extenafve on their own initiativa, etnos 10 GR Boense stage. An exception to or waiver considerstion at the CP stage. However.
L700e lim!ts th!s action to earlons of the rule wiU be permitted in particular Judictal procedent makes clear that safety, environmenta! or commaan esses if special drcumstamoes are NEPA requ!re agency decfefonmakers defense and security matters.
shown in accordance with 10 CFR L758 to only consider reaeonable alternatives.
Commente-Seventeen of the of the Commission's regulations.
heends of the Earth v. Colemon. 813 commecters who were to the "Considerstion of Commisslan rules and F.2d 295 (9th Cir.1975), Notural rule change stated gen y that regu!stions in adjudica Resources Defense Council r. Morfan, changed conditions between b dm of procedhas." ne rule be appBed to i
458 F.2d 427 (D C Cir.1972). Moreover,
&e contruct!on permit procndng (G) ongoing basing proce% 6an
)j It is well settled that environmental and the operating !! cense proceeding pending on its effective data and to issues need not be continuaDy (OL) such as increated costa, lower issues or contantions therein.
refitigated in indJvidual adjudicatory demand, new information, and new Pursuant to the Atomic En Act of proceedings, but may be ruo!ved on a technologies warranted a constderation 1954, as amended. b Ne j
generic beals through rulemakinF of these issues at the OL stage and a Environmenta1 Policy Act. of tees, as without violating NEPA. See Kcology new determination made on need for amended, the Energy Reorgenlaation Acrion v. A.E C,492 F.2d 998,1002 (kd power and a!! amative energy sources-Act of1974, as amended, and section *
'4 Ctr,.1974). Union of Concerned Response--While it is true that 863 of Title 5 of the United States Code.
Scientists v. A E C. 499 F.2d 1089 (D.C certain factore may change between the notice is hereby siven of the adoption of hn eIIN N2d $33 O and the OL proceeding the notice of the foDowing amendments to to CFR C
e41 (D C Cir.1r76), sev' don other PrcPo
+
an111el 6 &
Id
- 8 ""##*""####O "*"
the NDA cost beneSt balance against PART 51-UCENSI'$O AND
'armont YanAce Nuclear Pcwer issuance of the operatinglicense. As REGULATORY POUCY AND
- r. MtDC 435 U.S. 519 (1978). nis e,
in the absence of a showing of special more fully set forth in the motica, PROCEDURES FOR ENVIRONt4 ENTAL experience shows that completed PROTECTION circumstances. ruo!ves ond for power fants are used to their and afternative energy source tasuee in auc! ear power fability and that there has 1.no authority citation for Part 511e maximum sval OL proceeings on a generic baals, never bun a andhg in a Comalaston revind to road as follows:
OL procee that a viable Astbartty Sec.191b, k. I and e, se gaat,
.s.i encra pesus dme perA est. 949 and SSa as amended (42 UAC nedauena er se comes d asviremmental Quakty.
environmenta y superior alternative to.
mt r,g.2.se.
ep ne nonames in usr getation of the nuclear facility exists.
3RDi(b). (b). (!) and (o)). seca 3D1. Elt. 3 gaat.
a sevirmmentaf mp.cs esatements wtse n -ne> to De Commfseton expects this to be trua 1M2-1244. es amended (42 UAC aset,3e62)
Imed is sec=s am se lemas rer. for ausma
for the foreseeable future and hence,in Netional Eevironmental Policy Act of tees, fr.. C.A.t a.P, de abunce or a showing of speesi es.. iar. io a.d = :: stat --su..a
- a..r 4, er circumstanen, comideration of thew
== ended (an use us2. ex. 6:ss).
2 38_3 f
red:rd Register / Vel. 47. N2. CD / Friday. March as, taas / Rules and Regul FDIC's esses golionsens andb as discusefen of amed for power v newees er aha.assee Air to t o Digestar of 3.Section 81.r1is revised te med as ahermative seerwise is gogows:
ettas is tbMvblesd Sowetska and, where kweteng the As,senars En.
W 6e Ca m desina.
g,,,gg, ga Jt
- wt-CP** tine Llanee seem g
g,,g,, g Each applicant for a heenne to operate a new parogrsph(c)W W as g
egg g
with its appheation the number of ooples, asgst,gs r
% n-==""
h day, peak @preposeder *,
d by 1
en by v
bem te spectned in I st.40, of a,
(c)prea14egeSome shaB act admit sea,houseen,b t,e document. to be settled sentadoes pro 5ered by any M only aInveseMe EnvironmentalReport-Opere eeacerdagneed der powerer he delsget dobrainatesis staetasetery (Jeanse Stage, wasch diseneses same matters described la 5 81.30 but Wumeuve emergy somress $w he with respect to east of J "plantinoperettesBosmee Inciaes soakland h useas e d toFDL only to the extent that they di5w from
[setags.
s ges end g Ast thou discuued or aflect new D*indgmehlapaaDC tieasedderaf statement sa"AppBcadens Ier t
al e v tal statement prepared by the Commisstaa per to clear Replenary Casamondse, bonranas'are caus8al.(Ceples sagest) M PDICs peilcy stateesstse in connection with the construction permit & " Applicant's Environmentalascreaary a(sW"-+d=
" Applications for t
CsRasaseve Report-Opersting Ucense Stage" may yaamameradaeassens we available tem,g ygg,g saame esas meese g,,,g,y,,,,the artteria hat te lacorporate by reference any information centeined in the App!! cant,a elBoos.)
delegak must krales edetbefore as Environmental Report or Saal endronmentalimpact statement pEDERA1.Otp08tf Bauen esey be W ander previously prepared in connection with 00RPORAfl006 ted authori are the foBewies:
b so% &an the construction permit.With respect to ty 18 CPR perWI fed ad e&w by
/n (3) pp cant, ese o e se M mchr. N W Bank 4 h m wie the Comm!ssion. shet! subm!
e Apptfcant s EnvironmentalReport-wWRg W h m M ea W Es~
ble
, 8 * *U
- Tas b by I
b memocr.3 ederalDeposit
/
Depoellery Institution h(smagsmaat ration of the facih.No discussion
/
h6 WIUM SW @
need for power or a tornative energy Carpeneden.
sources or alternative sites for the Agnese Fhat rale.
(4)m pmjected Wuo of oW proposed plant le required in the report.evensaar.FDice Board of Directare le saphal and neems to anett %
us, least an!us otherwise reguired by the delegating to the Director of its Divislam prol*Ckd pro 8ta and g
of Beak Supervia!an and la its to percent at;be g g Commission.
S.Section 51.23 paragraph (e)is directore authority,if delines reviud to nad as follows:
I'*UbI**E#8II'"#'
at et for the t year of tion:
Centente of draft _.
r depost ahosten to
$$123 expeck his ac6on 58' " *I
- I' sestamenes.
relative to (e)Other cons deradons. A draft7 red i
deteralmed to be rea environmentalimpact statsmaat V
Sogs.
6e applicant's proposed ~eguity aaralags propand in connection with the tam E5ective on ll Garth an' eerr ospitahsation, proj rtinent bases of especity, and other Iseuance of an operatingIfcense will pga mesmsa serosanattoes o seasidereden sover only matters which di5er from or A. Qulacy.$802) 30s-814L (7) Any Anavidt arrangements which tefleet new informstion la -
section 8 of the Federal %a or proposed in donnection with the Aary sw eess addition to, those mattere discuped la proposed banklavolving the app t's the final endronmentalimpact Insurance Act(the "FDI Act,12 UAC.
directors, oscars,5 peromet statement prepared in connection with Sail), any State-chartered bank that is shareholdars or their laterests the issuance of the construction permit.
not a member of the Federk! Reserve determirped to be fair and on The draft statement may incorporate by System [" State nonmember bank")
as those reference any information contained in any branch of a foreignbank must a ly substastially the same te prevajling at the time for aparable that final environmental statement. With to the FDIC to obtain Federaldepostransactions with no idere ud do seepect to the operation of nuclear lasurance.la the past,all Anal actinvolve more thantoriaal stes er reactors, unless otherwise detertained determinations on applications.
able features.The by the Commisalon,the desft statement depoelt tasurancehave been made by present other unfav have fully disclosed, applicant also a will be prepared only la connection with FDICs Board of Directors.
er agree to discl fully, any each
/
the first IIcenolas action that authortseeFDIC la now delegating pse(er arrangement to anholdere petor to tbs of its proposed fullpower operstion of the facility.In responsibility for the approval of directors and the case of environmentallapact apolicationailn doing so,itsxpects to openingof the statements prepared in connection with aborten the procentag time for routine operating licanus for nuclear reactore
~ ~ - -
Fed:ral Register / Vcl.47.Ns.42 / Wednesday. March 31. test / Rules and Reestesses ATTACHMENT 13750 NUCLEAR REGULATORY II)(1) Also o!!ainated entirely these seqdrements and also regehts requirements for operating heemse Rosaseos to dessestrete eser akhtr to CotdWISSION elsea up aner as anddsat. 3y usetreet.
op(pbcaats; orii) Retained these ; O _ -
for agb5es, sukty grega.and elhty 10 CFR Parts 2 and 30 operating ! cenas applicants to to esatractere Elimination of Review of P1nensimi extent by mquire sebmiesten of abalasseg to Commission'sge m QuafmcatJons of Electric Utsttles in taformation conce easts of p gens;, w,thmes.ad ucenains wearinga ror Nucinar Power permanentry abetisag ibe f.dat, and maintainlagit in a safe consbeen esir spresentaives gaaersBy appsee
. Plants (i.e. decommisgtheseats).
segelstas mandatory property damage Inseranes Comments halsenissesel Concurwatly, Asaseev: Nuclear Regulatory Commission, proposed amendingits regulations to reDechd esh m and
)
acticar. Final rule, require. on an interim beats power views Geir sekty. Ameerseas, er reactor licensees to "malatala 6e pubbc interest cheats. Governmental svuuaav: The Nuclear Regulatory maximum amount ofsommerdaDY erganisations and inkviduals reDected Commisalon is amending its regulations evallable on-alte property damage a spectrum of views alth@Smaacial most to ehminate entirely requirements for bsurance, or an equivalent amount of were against altsqnating the financial qualifications nyiew and protection (e.3, letter of credit, bead, or geah8ca6cas aview.Some states and Andmas for electric utilities that are selfinsurancel from the time that the maaldpalities identiSed potential legal N of Commission Bret permits ownerabip.
osaSiets betwee certainm applymg for construction permits er possession and storage of special to proposed rulemaking and state law.
operating licenses for production or utilization facihties The Commiulonis nuclear material at the site of the A
of the comments is also amendmg its regulations to nguire nuclear reactor."
grounted low.Tbooe who are la the rederal Register motice.the jagerested may obtain copies of speciBe power reactor heensees to obtain on. site Commission based its proposal for this comments from the Pubhc Document properr> damage insurance, or an equisalent amount of protection (e.g..
rulemaking. In part, upon the statuto'Y Room or the NRC Secntary under Letter of credit. bond. or selfinsurance). basis in the Atomic Energy Act of1964.
des gnation pR-40(44 FR 41788), by from the tinie that the Commission Erst as amended ('AEA") for the Snandal writing to: Office of the Secretary. U.S.
l issues an operating beense for the spalifications regulations and its Nuclear Regulatory Consuosion, escussion in Public Service Company of Washington. D.C. 30655 nucleat reaetor.
k teractivs oart: Tor amendments
{
{s
,o/
A. Aeducittg er elimino de l
Conuruuson'sfinancialquo ifications Aminating financia! qualif1cetions 1 (1978)("Seobroche.'In that dedston miew. Those arguing against reducing t
nview (i2.104. Sections VI and VID of and the proposed maklag. the w dalm 6e Commiula's Appen6x A to Part 2. I(2 4. 50.2.
Commission a!!irmed its bebef that the Sneda! y canna renew ade Appenix C to Part 50. Appendix M..d existing financial quah8 cations review four major points.Firet.
discount hagraph 4.(b) to Part 50,4 50.33(f) u40). Mar. 31.1es2. For amendments health and safety concerna at meclear enn meet the Anancial demands of has done httle to identify subetantial NRC's penumpton ht pu Uc unhun estabhshing on. site property damage gwer plants. However, because the sonstructing and opersting nuclear l
Insurance requiremeot (Il 30 54(w) and (luu. Cidag Subrod.WPPSS.DC.
maission believed that there are 30.57), June 291982. In accordance with matters important to safety which may th Texas and other examples.
the Paperwork Reduction Act of tsoo, be aNected by finandal considerations, commenters maintain that utilities often (44 U.S C. 3507), the reporting provision it requested comments regarding the have experienced and wi!! continue to that is ineluded in paragraph (w)(5) of of NRC financial review that would experience difficulty in raising funds to ISO 54 has been submitted for approval gocus ehetively on considerations thatsover capital. operating and to the Office of Management and Budget might adversely aNect safety.
maintenance costs (particularly in (OMB). It is not ehetive until OMB B.Pubuc Comments on the Pmposed periods of high interest rates and approval has been obtained.
overcapedty), whether or not such costs Rule poa runt >.tn aironmatioes costracT:
can be recovend in the rete base Over too comments were received on Grough Constructon WoA in Pngnu lim C. Peterun. Office of State Programs. U.S. Nuclear Regulatory the proposed rufemaking and have been rwfu n ve d l
Commissien. We shington. D C. 30555 categorized as foUows:
dc
, ma & b (telephone 301-492-4883).
private citiaane-es comments roostved the inability to recover all costs pubDc interest groupe-.ao comments recetved vides an incentive for utilities to suPPt.EMENTanY iteFoaasATsont lasurance youpe-2 comments reestved p on important safety com ents L Beckground taea! ciounut-4 comments recstved and quality assurance stan
.Some covernmenta: organisasons and commenters die the chacuselon of On August 18.1981, the Commiselon individua!s-to comments noseved published a notice of pro d
UtiLtin and stility youpe-se commenta Bnancial disincentives la the Aegovin i
rulemaking in the rede Register (de remetved Aeport (Three Mile Island: A Aeport so 71t 417es) concerning requimments for Architect-ensineers and contracteep-a de Commission and de Public. Mitchell sommats mestved Rogovin. Direetor. January temp) to Saancial quahaca; ions review and Bndings for electric attBties that are A!! private dtizen comments and all support their views. Another commenter applying for permits orlicenses for but two public interest group comments suggests that otillties wtD be tempted to production or stGisation fed 11 ties. As oppose nducing or eliminating the lower wages which would lead to higher I
propond. the rule would have" Commission's Ananda!quahScation turnover and, thus, to employment ot (1) Eliminated entirely Aaandat renew requirements.However, they inadequately trained pervennel. Third, quali5 cations review requirements for genera!!y support imposing immediate commenters maintain that NRC construction permit applicants; and secommissioning Saancing laspection eforts and capabihties are
-- ~
I Tedersl Rjst:r / Vcl. 47. N182 / Wedrweday, hierch St. tes2 / Rules and Regulations 13751 2
iradequate 1o provide suf5cient IndicateiItd support fee the sabeennes te kapertamoe af h=
ag essurance of safet) Esen if violation.
of the proposed rule-elimination of te fundirig to public heale and enlary, but are found some commenters argue that financia! quahfications redew becease rather recepslaae that any estica se NRC enforcemeat efforts are of the lack of any demonstrebla lbsk decommissioning la more te in madequate Tourth. the commenters between public health and enfaty to acetast of the generic auert that the finaccial quah$ cations concerna and a etthty's abSity to make sour bolag conducsed. Used abst imma, reuea functon la atetutonly required the requie!te financial showing 6e Comedaaion has esadeded Get it la b 42 U S C E232(e). (c) and (d).
De actual financial situation premature to hsclude any Baal demianon 3
Turther, marry of those arguing against analyzed in that case has not changed.
en decomedesioning in ass hselvele on e!r nsting the flaancialquahacanona Dere is no evidence that the safety of Snanda! qualifications. 3seesse 6e reuew recommand that the Commission the public has been adversely aheted generic decomaniseinstes rule is sho.Jd at least retaan that porton of the by Public Service Company of New scheduled to be pubhahed in igsg and renew pertaining to decorn r.nasiening Hampshire's (PSCNN) difficulties in since alllicenseen wG1 be required to The) state that the ongoms obtaining financing it is true that to meet any financial;lthat rulemaking.
"r.te decommissio.mg rulemakmg is no raise capital. PSCNH has sold part of its imposed as a result a subst rute for an unmediate seneral ownership in the Seabrook plant. but there should be little practical effect m requ2rement to demonstratelmancal such action does not have any temporarily eliminating conalderation of capabut) to decommassaan a nuclear demonstrable link to any safety decommissioning funding from beensing prodwetion on utbsation facihty safel) problems Similarly.citingWPPSS-activities. Moreover. if decommissioning and espeitaous!) Men) espressed the experience is not convincing. because financing issues were contmued to be
~
s.ew that de genenc de:ommissiones WPPSS' response (and that of most other allowed in current licensing study wo.;1d not be compieied an a utilities encountering financial proceedmas t vo undesirable effects re..onab:e time
-difficulties) has been to postpone or may result Tarst. there would be an B contrast. those fasarma the cancel their plants. actions clearly not increased chance that fmdings m such 3
Com=.:ss.cn's preposed teducton or inimical to public health and safety cases might contradict evolvmg chm:nati n of the fmancial under the Atomic Energy Act.
Commission policy in this aren Second.
qs !.'..:.:ns rew. facton generall>
As to the third point raised in one positive gain from the final ru!e suppert the Comm:ssion's ressening that opposition to the proposed rule. in the would be countered. in that there could se:ch a reuew has done httle to identif>
absence of facts to the contrary, the be expected to be httle. if any. reducten substa.tne hea!th and safety prob: ems Commission cannot accept unsupported in the cententions before the beensing at nuclear p:wer p..nts nd that the statements that, as a general matter its boards on financial quahfications Cc-miss :r s u spection and
. inspection and enforcement efforts are issues. thereby not significantly enforcement actanties proude more inadequate.ne axamples that reducing the time and effort devoted to effecta e pro:e: tion of rubbe hea!th and commenters cite (e s., South Texas) those issues.
safet) Most ut hties and thett appear to substantiate, rathat than BJfondatotypropertyinsuroncefor associates suppert complete ehminatien undercut, the Commission's view that decontaminctson Commeots are of t!.e fmanc.a! quahfications review, any violauens of safety regulations are similarly divided on the issue of mclud;ng prous.ons pertaming to being found and corrected and that. in requinns on. site preperty insurance to decemm.ssioning These commenters any esent. such violations cannot be cover decontamination expenses rnamtam that. if any regulations re! sting show: to ariselrom a licensee's a!!eged resultmg frem en accident nose who to the financing of decemmissioning are lack of financial quahfications.
support keepir4 the fmancial adepted the) should awa:t completten Wath respect to the fma! assertion that quahfications resiew generall) support of the Commissien's genene rulemaking the financial qualifications review requinns a utiht) to demonstrate proof on decommissioning funct on is etstutorily mandated. Section ofits abiht) to clean up after en ne Cer.:nission has received no 182a of the AEA. 42 U.S.C. 2232(a).
accident The Commissioninterprets comments to persuade it to change clearly indicates that such function is these comments as support 2ng sigmfacant! its ressening on the within the Commission's discretionary mandatory property insurance, insofar 3
preposed fmancial quah6 cations rule.
authority. but is not mandated. As noted as it ces ers accident cleanup costs. The As mdacated above.many of those in the proposed rule, this interpretation other coms enters favorig eluninabon opposing the preposed rule change has e of Section 182a has been approved by of the financial qualifications rule concluded that expenence with the United States Court of Appeals for generally either (1) oppose mandatory Seabroek WPPSS and other plants the First Circuit in New Eng/ond coverage outnght because of recent self.
dem:nstrates the c!cse cennection Coahuon on Nac/cor po#uuan v. NRC initiated moves by the utthty industry to betw een fmancial quahficatiens and 582 F.2d 87. 93 (1978). affirming the obtain insurance or. (2) favor subst. anti.1 pubbc health and safety The NRC's Seabrook decision.
modification of the rule to clanfy Commission disag ees As to the first On balsace, after osteful several ofits provisions.
pomt raised b3 commenters opposing consideration of the comments ne first g oup of commenters do not ehmmation of the financial submitted and of the factors discussed generally state their reasons for favonns quahficatiens renew. the Commission in the nonce of proposed rulamahng.
mandatory insurance sacept for an dces not find any resscm to consider. in the Commission has elected to undefined and non.quantifiable general a sseuum the general shhty of utihties promulgate the first of the two benefit in protectmg pubbe health and to fmance the construction of new attematis es authned in the proposed safety Some indicated that the amount generation facfbties On1 when joined rufe. i.e., eliminate the financia]
ofinsurance currently available is act 3
with the issue of adequate protection of quahfications review of electric ut'!ities sufficient to cover accidents such as the public health end safety does this entirely at the CP and OL stages.
TMI-2. However. be cause of recently issue become pertinent As to this.the includmg elimination of any announced increases in the amount of commenters'second potnt. the considerstion of decorsmissioning coverage available and the continuing Com mssion in its SeabrooA decision fundmg This is not meant to discount evolution in the insurance markets. this m
Tcderal Resister / Vol. 47. No. a2 / Wednesday. March M.1882 ( Rales and Regelatione 13752 concern may not be as great as alght Commission diaayees with te peelties se6ertty to Q end mMhid taken by some commentees estitle hfeemanes to mevidualanses se may As lad esled abose. the second group enfair to many ewaere of smaller power be accessary for the F===a asma to oderwtse be the case.
of commentero-primanly u@ ties and seactore to require lasernase postly dekralas whe&st sa appbeetles esaseding h meet of splasha to should be er denied er wheeber aheemse be me a ned ersesebed.
their repruentetivee-object more to the wordmg of certain provisions of the decihty. A DO-g type accident seald
$1 Sea, fee saampia.&e foert asehmes of ws!! require coverase e proposed on site property damage insurance rule than to the requirement buboe, ao matter wbt the Secess18sa of 6e AEA.
.se Itutt seseral commentere recognize value or eine of the facihty.
dance h to pruest powem of Commission expects that the regetred r====t-ta= wt& regard m es Seesudal thei the practical efect of requiring mandatory insurance has been reduced heurance will cover reassamble Wea5ons adow d he decontamination and cleaney easts appucants for part as hasasse particularly since the D0-2 accident, anaociated with the property dames' mada.b ad&Wom es u " her becaun most u@ ties will buy whatever amount of coserage is offered,wtthin roeu!
from an accident et the waiver bem the rule wenhibe possible fedlity.Untu _ % of h mquin b embalmise of amandal reasonable tunits as a matter of good studies evaluettag the oost of cleanlag hf M en. b e a ^F1=' decWc business (udgment. Other commenters op ecddents of varytag erverity. it is s@
acaatif specia circum,s indicate that the Commission's am pummaat 210 g_ gg estimetee of artnuai premiums required prudent to require for a!! power reactors for a typical reactor may have been a masonable amount oflasuramos for aslaaddnalhonalagbearts undersated Estimated premiums for decontaminatico supease BJacticausipoem. Also as
- 3. Severa! persona commented that hdicated above andla the.4 "
coverage cunenth avallable [I e 3375 reactor ticanaees abould act be required rels,the Comedasion continues to r
or $450 million) are 53 million per year to maintain on.afte property damage expect that the Baal rule will. la moriaal for a rypical two urut site.
In light of these comments and for the insurance until the operating license has drcumstances, reduce the time and reasons stated in the proposed rule. the been received. With fuel merely stored eBort which applicants.bcensees, the Comminien he: decided to retain the at a reactor,ee chance of an accident NRC sta5 and NRC adjudicatory boards requirement in the final rule that electric requiring extenefve decontamination is devote to reviewing the opphcant's or entremely remote.The Comalaston Beansee's financial quahScationa. De utilities must have on site property agrees and has changed the rule damage insurenee but sesoral accord!agly, so that such insurance need rule wf!! ehminate staE review in cases wbare h applicant is an electric utilfry, modifications has e been nede pursuant be in force only when the stility is penumed to% able to finance activities to the comments receised The !cUowing licenwd to operate h reactor.
changes hase been incorporsied into the
- 4. Several Texas utilities commented to be subrised under the permit or text of the final rule on property that the Texas constitution (and.
Became C.Liosam Amadeients De insurance:
apparently, the Louisiana and Idaho eksdaation by this rule of the Saascial 1.The definition of"rnaximum evallable amount" has been clartfled.
constitutions) prohibits certain This term could have been interpreted to municipal subtles from purchasing quahfications review for electric attuty mean that utilities =ould be required to insurance ethr offered by mutuas applicants also apples to any efectric switch their insurance coverage to the insurance companies or involving stinties that become co owners via carrier offenna the g'estest amount at retroactive assessments %e amendments to existing permits or Commission has revised the rule to bcenses.From time to tune. original any particular tame Another addmse thue concerns.
mm dpmduchon or edubon interpretation could be that unlities
- 5. One commenter discussed the needfacilities make arrangements to transfer would be required to obtain coverage to clarify b ameunt of time required of k ohr eluvic venn a pedon d &
from the two majer insurers or any other b licanoes to obtain not only lattial owneshlp in se fuiu onnaUy.an insurer that decides to enter this market. insuranca but also subsequent increases amendment request is en filed which Fina!!y. the "masimum avallable" could offered. Anohr suggested that many echa te add es new partw as co-increment no matter have included and or how rutrictive the mgulated ut0 ties may have difficulty in owner and co licensee. For the purposes bow high!) pnce tenns and conditions ne Commission's obtaining approval to perchase d als rula,almuar to se situauon intent is neither to disrupt the iraurance insurance within to days.The relating to pmlicensing antitrust review markets by forcing utilities te switch Commission has revised the rule to M eue new ownm.ee amadmnt thett insurance carners unnecessarily reflect its view that to days is a MquM1 ccInprion the initial hcense nor to require utilities to obtain reasonable time in which to take application by the new prospective co-rouonable steps to obtain both laitial ownar, even though the amendment traurance under unreasonable terms and any additional on alte property request may actual! be filed by the and condations. The rule has bun changed to clanfy the Commission's damage lasurance.
gmoentlicansM an owwlg, hiroit S.The phreee "commercia!!y Mi8on Company (Enrico Fermi Atomic intent. specificaUy in I $0.54(w).
available" insurance could have been Power Plant. Unit No. 2). Al.AB-475. 7
- 2. Some commenters maintained that the proposed rule should apply only to construed to exc!ude insurers soch as NRC 712. 755. n.7 (197s). Since the same insurance covering decontamination of a NMI.and NEII.The Commission Saancia! qualifications aview facility suffering an accident and not to recognises this poselble but arroneous considerations apply to all electric
- aU rish" property damage tasurance.
Interpretation and has changed the stility applicants,ngardless of the Beca use decontamination inaursace is wording of the rule accordingly.
particular manner in which their the Com=futa=*e only concern from the Meer Considendens application la lendead to the NPC it abou!d be clear that this final rule point of view of protecting public health A. Aequirementfor AdditioncJ applies to Eny request for an and safety, coverage to mplace the Information. As indicated in the amendment that would,if granted.
existina facility os an "all risk' beefs is proposed rule, the Commission does not beyon:f the scope of the Comuniselon's latend to walve or rehnquish its residual include a new electric utibry as a co-authority. By the same reasoning, the r--
~
Fed:ral Regist:r / Vcl. 47. No. 82 / Wednesday. March 31. 1982 / Rules and Regulations 13753 owner and co.bcensee in a production L SN11).He date so whhdi the ese. & Phb. L pl-esIL as Sesc ler'I(es US C.
or utihzation facihty.
Information coDection requirements of anask TV. Conclusion
&is mle beconne efecWve, embes In summer). the Comroission has advised Io the contrary, asserthagly.
- 3. k $2.4.new parepaph (s)le added mffects inclualon of the so day persod h read a foBows-concluded that the adoption of the rule which the Act allows fee such avlew Ten"c'e's"s"s"'"'st !",#""*"'"'
neia-r rwaa c-a===
g84 Osebaue m r
As -d * *is e-t.
demonsi,siin. nnanciai quencauens or in accordance wie se n.guieiory electne uuhtaes that are applying to Flexibthey Act of18ED. 5 UAC.515(b).
(a)" Electric stility"means any entity construct and operate nuclear the NRC hemby certines that this rule est pneratn or distributes electricity produenon and utthastion facihties wi!!aot have a signincant economic and which recovers the costs of this 1
without nducing the protection of the impact on a substantial aussber of small pubhc health and safety Die portion of entities. De mie reduces certain minor electricity. either directly or indirectly.
I the rule will be effective Imrnedistely informstion collection requirements on through retes established by the entity
)
upon pubhcation. pursuant to 5 U.S C.
the owners and operstors of nuclear itself or by a separete regulatory sothority. Investor owned utibties t
533td)l11. since the rule is expected to power plants licensed pursuant to hcluding generstion or distribution reheve significantly the obhgation of asetions 103 and 104b of the Atomic infonnation required for construction Energy Act of1954, as amended.42 subsidianes. pubhc utility distnets.
certam apphcents with nopect to permits and operatmg licenses, and also U.S C. 2133. 2134b These electric utibty municipahties. rural electric to reduce the amount of unnecessary, companies am dominant in their service cooperatives. and state and federal time. consuming itaff review and areas Accordingly, the companies that agencies. includmg associations of any of the fore adjudicatory proceedmgs Although the own and operate nuclear power planta meaning ofeing are included within the are not within the definition of a small "electne utihty."
rule will be opphed to ongo licensin8 business found in section 3 of the Small 3 in 12104, at h (b)(1)(iii) and proceedmgs now pendmg an to issues Business Act.15 U.S.C. 832. or within introductory paragr ph (c)(4) are revised or contentions therein. Union of the Small Business Size Standards set s to med as foUows.
ConcemedScientats v. AEC. 499 F.2d forth in 13 CFR Pan 121 10e9 (D C Cir 19?4). It should be clear g 3.104 seeses et neertne.
that the NRC neither intends nor Pursuant to the Atomic Energy Act of expects that the rule will affect the 1954. as arnended. the Energy scope of an> issues or contentions Reorganizatiori Act of t974, as amended.
M...
i and section $53 of Title 5 of the United (1) * * *
[
related to a cost / benefit analysis States Code, the foUowmg amendments (iii) Whether the applicant is l
perfermed pursuant to the Nations!
l Enurenmental Pohey Act of1969. either to 10 CFR Parts 2 and 80 am published Anancia!!y quahfied to desisn and in pendmg or future beeosing as a document subject to coddication.
construct the proposed facahty except l
proceedmgs for nuclear power plants.
PART 2-RULES OF PRACTICE POR that this subject sha!! not be an issue if Under NEPA. the issue is not whether DOMESTIC UCENSING PROCEEDINGS the appbcant is an electric utihty the appbcant can demonstrate
- 1. The authonry citation for Part 2 seeking a heense to construct a reasonable assurance of covenna nada as follows:
production or utih2ation facihty of the type desenbed in 150.21(b) or $ 50.22 certain projected costs. but weather is Authortry: Sees 181.181. as Stat Dee. 953 mereh what costs to the apphcant of (s2 U S C 2201. 22311: sec.1st. as amended, constructing and operating the plant are Pub L a7-415. 7e Stat eos (42 U.S C. 2 Mil; (c) * *
- to be put into the cost benefit balance.
we. 301 Pub L maa. as Stat IM2. u As is now the case. the rule of reason amended b) Pub L 04-7s. as Stat 413 (42 (4) Whether the oppheant is technicall) and imancJally quehfied to will contmue to ges ern the scope of N,C st 1Y10s.
'"888'i"thCI # #8I' N '" "*
what costs are to be included in the der w u balance and the resultmg Stet eso 932 ess.saa.est. sea.as amended by the opeestmg beenu in accordance (42 U S C 3073 ares. n11. nas. nm. nul.
with the regulations in this chapter, determmations me> still be the subject sec.102. Pub L el-Iso as Stat. aa3 (42 U S C.
except that the issue of financial of htigation Thus. financial 43321 pc sol. es Stat taas (42 0.5 c. as'11 aushfications shall not be considered b)
I l
.quahf, cations u ould not be expected to Sectaons 2102. 210s 210s. 2.721 also twued the presidmg officer m an operstmg beceme an :ssue or contention in en undersecs 102.103.106 106 la3. tas. es Stat.
bcense beenng if the appheant is an l
NRC bcens.ng proceedirg msofar as
'3'[
8"*b electric utshty seekmg a license to NEpA rnaght be msched g
2 ons The Comm:ssion has also concluded 2 200-2 aos a!so issued under eec 1e6. as Stat.
operate a production or utilization that adeption of the on. site property oss 142 U S C 223el. we aos. as Sist t2as (42 fecihty of the r>Te desenbed m U S C Sa46) Sections 2 a00-2 eo6. 2 73o.
l 50 21(b) or i 50.22.
damage msurance requirement as 2 fr2alsoissued under we to2. Pub L.
modified will better ensure that et.190.a3 Stat 853 (42 U.S C 4u2t adequate protection of the health and Sections 2 Foos. 2.719 also issued under
- 4. In Appendia A of Part 2. Sections safety of the pubhcis achiesed This S U.S C $$4 Sections 2.754. 2 7ao.
YIICIIIIIUiI *"d Vill (b)(4) are revised to requirement will be effectsNe June 29.
2.770 also issued under S U.S C 557.
read as follows.
1984 Section 2 790 also issued under sec.103 64 Stat 936 as amended (42 U S C. 2133)
Appendia A-Staternent of Genere! Poucy Paperwork Reduction Act Statement Sections 2 aco-2 so? also issued under 5 and Procere Condwet of Proceedags for the inuance of Construenon Perunits and The Nuclear Regulatory Commission h $, 'g1" [a's Operano Ucenws for rroduenos and has submitted this rule to the Office of t
U.S C blatagement and Budget for such a33:j 5,etion 2 aos s!so issued under 5 U S C.
m noe re d e n for N e N W !s fenew as may be appropnate under the M3 and sec as Pub L M-236. 71 Stat $79 as Require to er ecoon ten o the Atomic i
Paperwork Reduction Act of19e0(Pub ernended by Pub L es-aos et Stat.taa3 (42 Enem Act ofim w Amended U S C 3039) Append s A is also issued under
Federal Register / Vol. 47. No. 62 / Wednesday. March 31, 1982 / Rales and Regalations 13754 VI Postbaarists Procaedage. IncJudag the ocoperatives, and state and federal afconstructinger spare a
injoa! Dedaion agencies. including associations of any must alsoinclude taforme of the foregoing areincludedwithinthe 01Helegaland Smassial meaning of " electric stikty."
seletionships it has or poupeese to have (c) * *
- ill * * *
- 7. In 6 30.33. paraysph (f)la revised to with its stockholdses er swears.
d te d[s gn e tset$e'D read as foUows:
til) Heir Sneacialabih to meet say l
q 8
8""
they hav er to Ea$ ribe an7s'a'u'e7Nc'$fiEa'n hear". W e electnc uttht) seeking a Basmae to construct a Each application most stats-g) gay,g,,gego,,,gg,,,,,lge d production or utthasoon fadhty of the typ, ascessary by the Commission to enable I
described in 15o.21(b) er acL22.
(f)(1)Information sufBeient to it to deteralas the applicant's Saandal demonstrate to & Comadesion the gnah$ cations.
.vtu Procedures Appl > cable to operatias Anancialqualificationt.1f the applicant (3)Enospt for electric stility Ucanae Proessen8.'
to carry out. in accordance with applicants for construction permita and i
?
reguletions in this chapter, the activities operenas licenses, the t'amamf aalaa may I
request an established entfry or newly-g)...
for which the pennit or hcense is t.
and f.r.ancM!) quahked to engese in the(4)wheder the op heant is techrucaUy However.no information on aaaria formed entity to subenit additional or n
actmties to be autheraed by sne operetna quellfications including thatin more detailed information respecting its beense tr eccordance wuh trie Conun:sesoria paragraphs (f)(1)(1) and (11) of this Snancial arrangements and status of regJat.ons. encept that the issue of financial section. is requirvd in any application.
Sands if the Commissica oonalders this qual:fganons shall not be considered by the nor shaU any financial review be information appropriate.This may board i' 9 e appbcant is an electnc utihty conducted if the applicant is an electric laclude information regarding a asle*nt[cIl$t>$fd'[*n'pe[e
$m utility applicant for a license to Beansee's ability to contfaue the conduct i
construct or operate a production or of the activities authorised by the u
5 50.211b1 or l50 22 utilization facility of the type described bcense and to permanently shut down in i 50.21(b) or i 50.22.
the facility and matntain it in a safe (i)If the applicationla for a ocodition.
PART 50-DOh4ESTIC LICENSING OF construction permit, the applicant shall PRODU* TION AND UTILIZATION submit information that demonstrates EL la l 80.40, paragraph (b) is revised FACILITIES the applicant possesses or has go r,q., fogow,;
5 The authorit) citation for Part So is renonable assurance of obtaining the revised to read as follows.
funds necessary to cover estimated 680.40 Common essadones.
constructien costs and related fueI cycle es 5:st e3s est osa e53.ese es5 ese as costs. The applicant shaU aubmit (b)ne applicantis technically and Autbont) Secs 1031o4181182.183.199.
amended t42 U S C 2133 rise 22o1. 2232.
estimates of the total construction costs Anancia!!y qualified to engene in the 2:33 2239; secs 2o1202 206 se Stat 1243.
of the facility and ref ated fuel cycle proposed activities in accordance with th1r cInseea costs, and shallindacate the source (s) of the regulations in this chapter However, e ete es d funds to cover these costa.
no consideration of financial under see 122 ee Stat 939 (42 U.S C. 2152)
(ii)If the application la for an qualifications is necessary for an Sections 50 so-se s1 afie issued under sec.
operating beense, the applicant shall electric utibty appheant for a heense for 1s4 6a Stat oss as amended (42 U.S C. 2234) submit information that demonstrates a production or utilization facihty of the Sections 501oo-So 102 :ssued under sec.186.
i sa $ tat 055 (42 U S C 22x) For the purposes the applicant possesses or has type described in 150.21(b) or 150.22.
of sec 223 se Stat 954 as amended [42 U.S C.reasonable assurance of obtaining the 22r3). Il 5010(al. (bl. and (el 50 44. 50 a6-funds necenary to cover estimated 9.In 150 54, a new paragraph (w)is rre' he " U$ Cf " ' operation costa for the period of the added to read as follows:
4 11 se 5 at oss a en y hu e a lity down 100.64 Cenetiens of Beeness.
e eder ec sti Sta 9e and maintainm' a It in a safe condition.
amended (42 U 5 C 22o1011 and il 50 55(ej.
The apphcant shall submit estimatee for (w) Each electric utility licensee under So 59.b). 50 ?C 50 ?L 50 72 and 50 7e are total annual operating costs for each of this part for a production or utthzation issued under see 1sto 6e 5 at esc. as amended 142 U S C 220!!c))
the first five years of operation of the facihty of the type desenbed in
$ 50.21(b) or 150.22 shall, by June 29.
6 In i 50 2. a new paragraph (x)is facility and estimates of the costs to 1962, take reasonable steps to obtain on-permanently shut down the facility and added to read as fc!!aw s maintain it in a safe condition.%e alte property damage insurance i 80.2 Dennmena applicant shall also indicate the avellable at reasonable costs and on As used m this pa t.
source (s) of funds to cover these costs.
reasonable terms from private sources An application to renew or extend the or to demonstrate to the satisfaction of (m)" Electric utility" means any entity term of an operating license must the Commission that it possesses an include the same financialinformation equivalent amount of protection that generates or distributes electncity as required in an application for an covering the f act!!ty. Prerided. that:
and which recovers the oosta of this (1)This insurance must have a eleetncity, either dar,ctly se indirectly, initial heense.
(2) Except for electric utility minimum coverage limit no lese than the through rates established by the antity appbcants for construction permits and combined total of (i) that offered by itself or b) a uparate regulatory operating beenses. each application for either American Nuclear Insurers (ANI) authent). Investor-owned utihties.
including generation or distribution a construct on permit or an operating and Mutual Atomic Energy Reinsurance subsid, anes. public utility distneta, license submitted by a newly. formed Pool (MAERP) jointly or Nuclear Mutual municipahties, rural electric entity organised for the pnmary purpose !.imited (NM1.). plus (ii) that offered by i
an Federal Register / Vol. 47. No. 62 / Wednesday March 31. Het / Rules and Regulaticas 13755 Nucleat E!eetric Insurance limited Snancial protection it maintalan and the
- u. ks Appendia M to Part 30.
(NEIL) the Edison Ejectne Institute swrces of this insursace or peotecnics.
ph Q)la revised to read as (EIlj. ANI and MAERP jomtly, or NM1.
- 10. In i 50 57, ph (a)(4)in a s eaces: propert) insurance.
remed to read as a:
wu n a-m-h of Design.
(2)The hcensee sha!!. with2n ninery Masursense of wwJese ps ee sessamm.
(90) daye of any increasee in pobcy 1M WW Camewudem and Opmeetime of Deusdaar Peeer Emessen leasufacewal Pwount to hmits for pnmary or excese coverage (a) * = +
that it has obtained pursuant to this (4) The aFpDcant la technicaDy and paragrsph. take reasonable steps to Anancia!!y gushfled to engage in the ottein these increases; and activities authorised by the operating f)* h,,g,,,,,,,3g,f,,,,g,, m (3) When a licensee is prohibited from license in accordance with the t to lacJa(f) aball be dwected at a purchasing on site property damage regufs tions in this chapter. However, no esses of the Anancialgushncations inssance because of state orlocallaw.
Andtng of financial quahncations la of the appbcant for the manufactunne hcense the licensee shall purchese the specific necessary for an electric stihty 88 88FFF **t the manufactunna actmry for which es lesesse se seasht.
amount of such insurance fcund by the applicant for an operating license for a NRC to be reasonably available to that production or utilization facihty of the ens tae by of bcensee or to obtam an equivalent type desenbed in 6 50.21(b) or 15022.
[s%on.
amount of protection and Fee The NucJear Regulatory Commission (4)The bcensee shall report an Aprill Appes&a C--(Removed)
Samuel l. Chilk.
of each ear to the NRC as to the g,,,,sary oW conunission 3
present lese!s cf this insurance or
- 11. Part 50 is amended by removing
- **
- N Appendix C.
P' *" "' "* "a enuma sama ven.
W l
1
l.)
ATTACHMENT C
. UNITED STATES OF AMERICA NUCLEAR REGULATORY COMISSION ATOMIC SAFETY AND LICENSING 8DARD
~-
BEFORE ADMINISTRATIVE JUDGES Jones L. Kelley, Chairman Dr. A. Dixon Callihan Dr. Richard F. Foster I
In the Matter of h
ASL8P Docket No. 81-463-01DL I
DUKE POWER COMPANY, ~et al.
h (Commission Docket No.
l 50-413-0L and 50-414-0L) h (Catawba Nuclear Station, Units 1 and 2)
'hl March 5,1982 l
J MEMORANDUM AkD ORDER (Reflecting Decisio'ns Made Following Prehearing Conference)
On January 12 and 13, 1982, the Board conducted a prehearing conference in York, South Carolina, pursuant to 10 CFR 2.751a. The primary purpose of the conference was to consider'pind'ing petitions for intervention and contentions filed in support of those petitions.
Admission of Parties. Petitions to intervene had been filed by four organizations and by the State of South Carolina. Three of the petitioning organizations appeared and participated in the conference: Carolina Environmental Study Group ("CESG"), represented by its President, Mr. Jesse L. Riley; Palmetto Alliance (" Palmetto"), represente,d by counsel, Mr. Robert Guild; and Charlotte-Mecklenburg Environmental Coalition O
e d
L
assessment and environmental statements.
Environmental reports prepared by applicant _s (sometimes found to be deficient) are major source docisments used by the Commission's Staff. When the Staff's draft environmental statement for Ca'tawba is issued, Intervenors will have an opportunity to study it and to submit comments about any item of concern, including source terms, environmental pathways, and health effects. However, any additional contentions on this subject will have to be based on new information.
Contention 22 (Palmetto 48): The first sentence of this contention about dilution of ownership, refers to " responsibility and liability," but s
it does not say for what. We have admitted Palmetto Contention 24, which addresses the ability of the small owners to produce the funds needed to operate the plant.
This contention may overlap that contention, but it seems to add nothing of substanceJ5,/ The remainder of this contention must also be disallowed because it does not raise any issue properly cognizable in an operating license proceeding. The NRC is not concerned with whether purchasers of nuclear generating capacity enter into s -
unf avorable agreemen,ts.
- The Security P1an.
Palmetto Contention 23 alleges in general terms that the Applicants have not developed and demonstrated an adequate security plan. The contention does not point to any particular deficiencies prestnably because, as the Applicants point out, "the security plan is protected under the Commission's. regulations (10 CFR 2.790), and is not available for 15/ We will co'nsider later on whether allowance of substantially
~
similar contentions by two or more intervenors should lead to consolidation of their presentations on that contention.
a
_m-I Applicant' ' Response, p. 78. The Applicants go on to argue inspection."
s that Palmetto nevertheless "must frame [a st.fficiently specific] contention on information available to it," this despite the fact that, by hypothesis, no information about the plan is available. We reject that argissent.
In the instances of unavailable information discussed so far, we expected the problem to be resolved later when the relevant documents become publicly available. Here, however, unless ordered by the Board, the Catawba security plan will. remain unavailable to the Intervenors.
Because an intervenor cannot reasonably be required to advance specific contentions about a security plan he has never seen, and because Palmetto has expressed a formal interest in the Catawba plan, we believe we y
could at this juncture order the Applicants to grant Palmetto access to that plan.
We could now find that disclosure of the plans is "necessary to }
a proper decision in the proceeding." 10CFR2.744(e),asrecently amended, 46 Fed. Reg. 51718, 51723. However, we are uncertain whether Palmetto is fully aware of the procedu'ral complexities and costs associated with pursuing security plan issues under the Commission's case law and new regulations.
For one thing, we would condition a disclosure order on Palmetto having obtained the services of a qualified security plan expert.
Beyond that, access would be conditioned as to time, place, note-taking, and the like.
A copy oi the protective order entered in the Diablo Canyon case is enclosed as illustri.tive of these restrictions. A copy of the new security plan regulations is also enclosed.
A logical next step, then, is for Palmetto to consider the matter further and inform us, within ten days of receipt of this Order, whether it wishes to gain access to the Catawba security plan, subject to the kinds of
conditions we have indicated. If it wishes to proceed, we will then hear from the,other parties and consider what further procedures are appropriate.
1 Service of Documents.
During the prehearing conference Palmetto complained that they had had only limited access to the Applicants' FSAR and Environmental Report and that their ability to formulate contentions had been significantly hampered. Palmetto anticipated that they would have further difficulties of that nature unless documents yet to come -- particularly atendments to FSAR -- were served upon them. The Applicants rejected these complaints.
Without attempting to resolve these disagreements, the Board suggested that Palmetto make a motion that. henceforth the Intervenors be served with copies of all relevant documents generated by'the Applicants and the Staff in connection with this operating license proceeding. This would include, most significantly, amendments to the FSAR, other formal technical exchanges between t,he Applicants and Staff, emergency plans generated by State and local authorities, the draft and final environmental impact statements, and the Staff's Safety Evaluation Report, as supplemented.
The Board believes that it would not significantly burden either tne Staff or the Applicants to serve a copy of the papers they generate in the future on the Intervenors.
This is suggested by the fact that the Staft,,
and some applicants have provided such service in some past cases.
In the case of a particularly bulky document which the Applicants or the Staff believe will not be viewed as important by the Intervenors, the Applicants or Staff may se'ek the permission of the Board Chairman to serve only one copy of the document on one lead intervenor.
In such a case, the w
m 51718 Federal Register / Vol 48, No. 204 / Thursday, October 21 1961 / Rules and Regulations
~
a one, whether for remunmden or not a prohibit b unauthorised diodoeta of faci'!!!ee and spedal nuclear materials ne r accept, for himult or ha family, tev certain safeguards information b) NRC required to be protecteil under 10 CE or b e$ts under caicumutanen wiuch ht licensees or other persons (45 FR 15450). Part 73 chould tw tecludedla the be ce trved by reuonable pmens as ne proposed rule was puhushed 'n proposed rule. Upon further review the
",'" "8M' dud response to the provisions of a ne er Commission has concleded that a Man o privata promime of kind Won 147. SAFEGUARDS
. applicability should be more closely INFORMA!10N of the Atorn!c Fa ergy related to the."
cant adverse effect binding up the dunes of ottics. ce a Covernment mployee has no vote word Act, as amended. Public commer on the on the health safety" standard which can Lv ' dias on pub duty.
proposed rule was received 60m forty-contained in Section 147 at the Atom!c F. Engese in businen th*
hve groupe and organisations as Energy Act, as amended. Accordingly, Covemment et r direct! r indirectly.
follows:
'the scope of the rule has been reduced rm den to apply caly to those fadlit;es, audsar
- 8. Never un any dos coadng to him materials, or transport activities for cenSdentally in the ormance of
- 'th=""
so which there exista signmt mat potential govemmental duti as means for making
',,',',Y",',",",u==
for harm to the public health and safety e
printe profit.
a e if the nuckas materials or facilities
- s. F.rpon tion wh ver dhcovmd.
t=
e involved an latentionally alsumed or scL Uehold se pr acapi ever conscious a
that public o ce is a public t,
damaged.Derefore, Bdes d M M on h l'W k Mmba Bfh Dere were no comments rcos' red regariing the physical prstection of; i
A!! act!@egfavoWormula from pub!1cintarost groups or For ne ucleat Regulatory on..
I organizations, quantitles of stra e sescialnuclear Extensive revisions have been made material, both irts tad and.
- W to the rule as a result of the consents unfirad!ated (:noot of the physical
" "" "*d " ****"3 received. ne most significant redslons Pr t'et n inf r=*ti'a f*r **tiviti
S'o caos namewas myolving a formula quentity of. dear indude:
unirredictedstrategic special nu Excluding from the scope of the rule 10 CF7t Parts 2,50' 70' and 73 activities involving less than a formula material would be classificd as National quantity of strategic special nudear Security Infonnation under to CFR P3rt Protection of Uncleaamed Safeguards material (except for spent fuel 96).
Information shipments).
Operating power nectors, and Deleting limit of error ofinventory Spent fuel sh!pments (but not routes Aoswcy: Nuclear Regulatory diffennce (LEID) Informstion frem the and qua.stitiss).
Commission.
rule.
%1s separetion is g:neraDy consistent,
AcTioac Final rule.
Adding guard qual &ation and with the ovenu NRC Policy of raded training plans as items considend to be safcpards. ns activities that remain suuuAny: ne Nuclear Regulatory Safeguards Informadon @on portions-amier the rule (with certain minor Comminion is amending its regulations that disclose facility teleguards eueptio is such as non. power tsactots) to requin NRC licensees and other. -
features),
require protection by armed scards, persons to protect uncleas&d -
Deeming information protection.
whereas the sctivities deleted do not.
safeguards information against unauthorized disclosure. ne rule systems used by State and local pelica,
.Appepriate paragraphs of I 7:1.21 have force adequata to mest regulatory been modified to reflect this sospe j
establishes requirements and uts forth requirements.
change. In regard to the second point, '
--ditions to be applied by NRC Rephrasing i 2.790(d)(1),
tha Commission has determined licensees and otter persons for the Not requiring the marking of generically that informe tion cor carning protection of una. lass &d Safeguards documents more than onayear old a licensee's or applicant's mate ial normation for operating power stored by licensee contractors. Such control and accountinC or phyalcal reactors, spent fuel shipments, and documents would be marked if and security prograrn for special nuclear activities involving formula quantities of when taken from storage for use.
materlak not otherwtae covered by strategic special nuclear material.
A. Discussion of Comments Resulting speciSc statutory exsmpleos,is anscTws parc October 22.1981 for in Changes to ProposedRule com:nerda! a finsacia; infsrmatian for il 2.744(e). 2.790(d)(1),73.2 (jl) and (11),
(1)ReductionIn the Scope of purposes of Fmdom cflaformation Act and 73.21 (s). (b) and (c)(1). All Application-A number of commenters (5 U.S.C. 532) (c'OIA) requeMs. In order remaining actions will be effective on suggested that physical protection to reluce both the licensee's and the January 20.1962.
Information for facilltfes that possess Commission *r mininistrative beden Pon runTurn tieronanatioes cooiTAcT:
only special nudear material of lo'w associated w1h licensees applying for a Mr. Donald ). Kasun. Physical Security strategic significance (Category III) be withholding dekrmination for each item Licensing Branch. Division of deleted from the rule considering the of such infortnation submitted to the Safeguards. O!!!ce of Nuclear Material small petential hazard of such matenals. NRC rader 10 CFR 2#9%b)(1).10 CFR Safe and Safeguards, U.S. Nucisar Commenters also e ested that this 2.79P(d)(1) has been amended to jetm Re story Commission Washington, type of information waen in the hands of such information ennfideatial l
D.C. 20555. Phone 301-427-4010.
the NRC be withheld from public-cocmercialirfor:sstion under I
surm.sasaxTAny weronssatione disclosure as commercially valuable exe'aption (4) of the FO!A.nla (proprietary)inforn.ation.
continues in effet present procedures ne Commission agress with both for each internation.
On December 29.1990, the Nuclear points. ne original determination of Fine ecownten supported the Regulatory Commission published for scope was bened on the assumption that retemfon and/or expansion of comment a proposed rule that would appropriate information partinent to all i 27M(dX1l es an appropriate method
~
l Federal Register / Vol. 46. No. 204 / Thursday. October 22. 1981 / Rules and Regulations 51719 for withholdina material control and toindicate that any drewing or Lindt off. sits cosamunication accounting and physical ucurity document bt substautf ally reptwents information that needs to be protected infonnation not cormdered to be the final design of the physical security to communications med for escurity Safeguards Information.ners were no system would have to be protected. nis purposes.
comments to b contrary.
change eliminates b need to control Show that portions of any (2) Deletion off./mit ofErref,of much of the initialinformadon, such as oormpondence that contains
/neentory Diffmace(l.EID/
requests for bids, but still requires safeguarde Information would have it Informat/on-A large numbu of protection of documenta that are only be protected..
commenters recommended b deletion slighdy different from the Saal version.
Remove 6oss b rule and staos in.
of I.EID information for low enriched (e) Vito/ArvoIdent/fication and danos documents many of the ursalum fabrication facilities on the Locotlan-Several comunenters noted taued requirements relative to bes!s that this informadon would not be bt the proposed rule might be marking, transmiulon, and destrucuan very valuable to a diverter attempting to interpreted as requiring protection of steal material within the limits of a thformation alreadyla public of documents that contain Saferahls Informadon.
statistical alarm threshold.
doeurnents, such as in the FSAR.
Note in i 2.744(e) the applicability of ne Commisslon agreee and !.EID speciScally in regard to drawings that criminal sanctions, as well as civil frdormation hee been deleted from b show locations of safety related penaldes. for vlo'ations of Board ordere rule (1.EID informa tion for acdvities equipment.no rule was therefore pertaining to Saf Information.
Involving formula quantities of strategic revised to indicate that only drewings or BEacwalon Coeuroenk Not special nuclear ma terial would still be documents that explicitlyidentifyitems class &d under PartpQual/ficot/onof safety-related equipment as vital for Acceped#y the Casmiaston (3) Addition of Cu purposes of physicalprotection are (1)Prohet/or Dur/Wyricy
+
N adq of and Trolning Plans to the /lule-Ten mquired to be protected. (Note that th-e comments were received on this matter, content of Appendix E has now been proped to CFR W was the most for any item. Commenters incorporated into b text of the rule at quudoned tw Rm commenwrs steted that guard quahfication and paregraph I 73.22(b).) Other than as re[n would conarm a prwi%
ne amendment l
training plans contained, among other abova, engineerjos and construction a
things, site specifle response proceduno drawings that show the locations of
,gg,,.s subd'Y to inue appropdm ord b' '
- and descriptions of facility safeguards safety.related equipment are not Qt features. A review of several such plans considered Safeguards information.
lafomadon Is mg an (7) Acceptabilit ofPresentProsset/on adjudicatory hearing. He amendment received by the NRC disclosed that while some plans were so general that Systeme-Severe [commenters
. was ma by se Commisalon as se t
by could not be considered Safeguards sugguted bt specific physical sainimum msMetion awded to pract %
the health and safety of the public or the Information, others contained spec 15e brotection requirements not be included common defense and security la the information that should be protected.
b existing rule but that !!aansee or ne ru!s has been amended toinclude ted context of adjudicatory heartage.
State standard proceduas be aSuded.
those portions of guard qualification and instud. W Commission has co uant to section 147s of the Atomic training plans that disclose s!!e specine based on frequent NRC staff contactat.
{argy Act of1954. as amended (the features of b physical protection that State and local police forose protect Act). and to impose the minimum I
system.
Informa tion in a way that is equivalent impairment of procedural rights, as (4) Crandfatherins-Comments to the rule re'quinments. Accordingly, required by section 131 of the Act.%e I'
pointed out that certakt organisations b rule has been revised to does State amendant maku it clear eat &e l
(e.g. architect /engineedng firms) may and local police information protection ph lea! protective measures and need have very large quanrJties of old proceduru acceptable. In regard to NRC 2 m standards of I 73.21 da.uments that qualify as Safeguards licensees that fallinto the scope of the would apply to Saf Informadon liformation but are rarely removed from rule, b Commission has concluded that in adjudicatory hearings.
storage. ney suggested that this without formal requirements there First, the commnters nW correctly, information be exempted or at least would be no assurance of uniformity, but as a shortcoming. that i 2.744(e) given special consideration.De consistency or an adequate level of applies only to cy records and not Commission agrees with this euggestion protection across the ladustry. As.
to Safeguards omstion possessed in part and has amended the rule ta.
evidenced by the comments received..
only by an applicant. licenme, or require marking of documents more than there is considerable divergence of contractor. A second objection was that one year old only when by are opinion as to what constitutes a the proposed i 2J74(e) gives relatively removed from storage. Storage. '
minimum saceptable level.
weak authority to the licensing boards protection and access requirements (8) OrAerMinorCharisse-8ased to prevent disclosure by intervenors and however, would still apply. Documents primarily on comments received, their lawyers. %e commenter asserted containing Safeguards Information additJonal rule changes have been made that some showins of reliability should located at the operating facility would to:
be mquired of such persons before -
have to be marked regardless of age.
Permit Safeguards Information to be Safeguards Information is disclosed.
(5) "As Built"Drawinse--8ome transported by any ladividual nird, the commenters stated that the commenters suggested that al! revisions authorized access under b rule.
proposed regulation gives inadequate of deswings, not just the !!nal, be Show ht matter other than guidance to the licensing boards on b comed red as Safeguards Information.' documents m ontain Safeguards land of protection intervenors should be Other commenters suggested that Information. ~
required to give to Safeguards I
preliminary design and construction Allow un or ADP systems by Information. He commenters euggest l
. drawings be specifically excluded from contractors oflicensees, that b natrietions und in the Diablo
- l the rulo.h Comminion believu there Indicate that non security related Canyon case be adopted. See poeffic is some merit in both suggestions, orvers and procedurn for guards need Gas andE/ectric Co. (Diablo Canyon Accordingly, b rule has been changed not be protected.
Nuclear Powar Plant Units 1 and 2) 1
51720 Tederal Register /.Vol. 46. No. 204 / Thursday, October 22, 1981 / Rules and Regulations AIAB-600,12 NRC 3 (1980). TinaDy the Safeguards Information should be reasonable necessity for discloeurs.10.
v.ommenters suggest that the possibility laserted lato the agency's rules as the
- CFR U44(s) as drafted reguires a i
of enminal sanct ons, as Geu as of dvil commenters request.
Anding by the proelding orncer that I
penalties, be noted for violations of For this roeson alen, the Commission disclosureis noosemary to a proper Board orders pertaining to Safeguards will defer to a later time the decision decision. De prwiding ofBcer, as usua!.
l Information.
whebtit should stipulate an further will exordse a rule of reason b applytag i
la ruponse to these cemments the dance or rules for how the the standard.%e language used l
Commiesion has made one change to ards should write protective orders to a
has the same result andis l
proposed i U44(e).nal change notes protect Safeguards Information. At this consistent with the the applicability of criminal sanctions time the Commission believes thatits la i U 44.
i by stating. for the purpose of section 223 opinion and those of the Boards provide (2) 7hmtwordinem Desarminot/ene--
cf the Act.that any orderissued adequate guidancs. See. Pacific Gas and
, ~*
pursuant to I ue4(e) with respect to Elec#ic Co. (Diablo Canyon Nuclear A nussber of comumenters disagreed with Safeguards Information be considered.
Power Plant. Unf ts 1 and 2), C3J 30 the absenos of a personnel clearance or screening as a en order issued pursuant to section 11 NRC 775 (1980). A!AB 410. 5 NRC
, son & den or accam to Saf 161b. of the AE Act.This is in accord 1398. (1977) A!AB Sao.11 NRC 227 Informa$on, noting that the traditional with section 147b. of the Act.
(19ech A!AB 502.11 NRC 744(teach requimments for ocean 2 senaldw De Commission believes the other and AIAB 800,12 NRC 3 (1980).
hformanon inclode boe **aed-h-comments should not be adopted. It was One commenter also took the position know and hetwarenness est the intention of the Commission to that proposed l U44(e) did not provide determinaHona. One onamenter place any restrictions on discovery by adequate protection against undesirable intervenors, or to write aiy spedal rules disclosure of physical secuiity plans for led that persons having access be en eckd k b screming pmgram chilung intervenors' rights, euch as a nuclear power plants. In his view a b Commimion has dirocud be screening requirement not app!! cable to protective order and afBdavit of
' g.s,hshd for power reactor pmaand.
all parties. Not only would such rules be nondisclosure would not eliminate the d'scriminatory, but also would be risk of unauthorized disclosare by' Anther comunentar suggested that contrary to sections 181 and 147s of the intervenors who had an ulterior motf" individuals k required a show Act. %is Commission cannot presume of securing the plans for usein su!5dentarvidence of trustworthiness b: forehand that intervenors and their sabotaging the plant. his commenter befwe king grankd acces.
counsel an any the-less trustworthy recommended (i) inclusion of rules of
%e Camiaalon.a poeldon on gg,.
th n the staH or applicantand their decision based upon Diablo Canyon for notcha d.
counsel.
presiding officers to apply in hearings,
,3gy ne minimum protection required for and (U) neurity clearances or a Act contains no provisions agareng Safeguards Information is statod in acreening' program for persons with tworeln s dans on proposed i 73.21.%e requirements access to Safeguards Informationin am (as is sedwe in.
pomonnel counsefply to intervscors and their hearings,in order to assure security there a Secdon 1]45 m accen to Restricted as weU as to the a licant or
. trustworthiness and re!!ab111ty. Both of licensee. Sect!on ue4(e) a owe a Board these recommendations have been
- Dets) Secondly de Camission does, not believe that there is any reasonable 13 so further, if, in its judgment efter.
discussed above and rejected. In hearing au relevant arguments, the
" addition, the Commission does not mgulemry fromwak Sat can be used repose to write rules affecting rights of to establish e IJcensee administered circumstances warrant it.%Is Commission needless to say, has fatervenore in adjudicatory hearingssemening pro [aded see geguards
- m. conside the wide confidence in the ability ofits Boards to based upon a suspidon of ulterior,
estreution exercise sound judgment in the exercise motives in intervening. To do so would InfamadonMhue se powermacte cf their discretion under I 2.744(e), and be tantamount to writing rules based accen suewizadon pmsrsm madoned therefore at this time declines to write upon specu!stion rether than on fact and by one commenter might be used for cny special rules for the guidance of the law.no hearing process already
" clearing"lleensee employees and other Boards as to the extra measures they contains screens to separate the genuine pmons granted unescorted socess to may require for the protection of intervenor from the epurious.ne the reactor facility,it would not be Safeguards Information in adjudicatory intervenor must validate both his applicable to engineering firm beinnas.
standing under judicial rules and the employees who are never on the site With respect to the pr'otective merit of his~ contentions. He is a known. (but who in some cases have total
.s measures used by the Boards in the and readDy identiSable person who access to se physical protection systm Diablo Canyon case and their potential openly participates at considerable design information). Hirdly,the general applJeability, the Commission expense. Intervenors generaDy make no Commission believes that the proper notes that those conditions am involved effort to conceal their opposition to administration of the need-to know in a review of the Diablo Canyon -
nuclear power, but this does not supply requirement combined with the rule's hearir.s by an Atomic Safety and an adequate basis to consider them as ocx upadonal metrictions will provide an Ilcensing Appeal Board.%e Appeal potentf al co-conspitstors in plots to effective information protectfon program P:nel has informed the Commisalon that sabotage operating power reactors.
and still satisfy the " minimum it would like to make some suggestione In contrast to the above, a third restrictions" provisions of section 147a regarding the handling of Safeguards commenter stated that proposed of the Act.
Information in adjudicatory hearings but I us4(s) was potentially too restrictive. Telecommunicat (3) Unrest.ricted Use of f;els constrained not to do so until the of intervenors' rights in that it geve too Diablo Canyon adjudicadon is finished.. much authority to the presiding officer.
commenters suggested that the ne Commission believes that ths he commenter suggested modification restrictions on the use of telephone suggestions of the Appeal Panel wiu be of proposed i U44(e) to aUow circults for transmission of Safeguards most usefulin determining if restrictions disclosum of Safeguards Information to" Information be defeted. Various reasons en intervenor's rights of discovery of a party upon a showing by the party of were given for this change. One 4
m
l l
1 Federal Register / Vol. 46. No. 204 / Thursday, October 22. 1981 / Rules and Regulations 81721 commenter stated that the rule would Safenards Information storedin ADP safeguards incident.no Commisalon.
prevent the licensee frorn caUing for systems is more severe than with does not agree. Documents located help in a afeguards e;nergency.This is telephone usage. ADP systems locatad within alarm stations and guard houses not so since the regulations make an at engineering firms may have in need not be inlocked securi e sception for extraordinary or memory large amounts ofinformation on containers since they are direct ernergency circumstances. Ano}her the design of a physical security system.
control of security pereoane!. Similarly, commenter contended that the resources Without restricticos access to such guard otders and procedures may be needed to intercept unsecured informatf on potentiaDy could be gained posted at access control points provided ;
communications excerded the technical by anyone, authorized or not, who is that b post is continuously manned capabilities of the design basis threat.
familiar with the operetion and has and the information telocated so as to The Commission disagrees with this access to a terminal Remote terminals prevent observation by visitoes.
position and believes that relatively could provide an especiaDy easy and httle sifU is needed to tap phone lines or unobtrusive means for obtaining
) Addition of Other 7) pee of otion--Several commenters eavendrop on radio conversations. A selected Safeguards Information. Accasa disagreed with the deletion of generic third commenter noted that the to unprotected data linas betweet) safeguards studies and ris (such as telephone is normaDy used to transmit facilities could also be used to the Sandla Laboratodes' dbooks on shipping information and it would be compromise a physical security system.
Barrier Technology andEntry Control bardensome to use another method. In (5) Php/cc/Protodion
- Systems)from the scope of the rule and f
this regard, the only shipments covered Requinments iSeveral commenters noted that no justification was given for by the final rule an opent fuel and stated that the storage requirements the omission. On this niatter the,
forrnula quantities of stretegie special wwe too restrictive. Suggested Commission notes that the original nuclear material (Category L) a!!ernatives (to locked 4ecurity storage legislative proposal prepand by the Notacations regard.ng spent fuel containers) included storage in desks.
NRC and interim versions of the shipments an required to be by mail file esbinets, locked rooms.
legislation, contained exp!! cit language (See to CFR 73.72) except that reporting undeelsnated oe non-CSA sp regardmg the protection of " studies, schedule changes are permitted to be storege repositories, or anyw in a wports, and analyses which made by phone in the form of time controUed access or protected area.no concern the safeguarding of nuclear dedstions from the original schedule.
Commission dou not agne with the materials or facibi es."* %Is provision Information regarding Category I suggested alternatives. He basic was deleted from b ha.s! version of shipments is classmed National Security objective of the security containeris to section 147. In view of this deliberets Info mation under Part 95 and use of make more dif!! cult smdiscovered action by the Congress, the Commission unsecured telephone for such compromise of Safeguards Information.
has no choice but to delete bwitems l
information is prohibited.
A steel filing cabinet secured with a from the rule.
Another commenter stated that the locking bar and a CSA approved One commentar suggested that rule conflicts with the requirements of combleation lock. oe a CSA approved information developed during the course.
I 73.71 regarding the telephonic security container both satisfy this of probabilistic risk assessments be reporting of physical security events, ob ectfes. On the other hand. locked fl!e.
protected under this rule.De ne events for which reporting is ca Inets, desks. and ordinary doors can Commission, while agreeing that sui:h requ! red an considered to be be entered with !!ttle difBenJty and information m!ght have value to a extraordinary conditions in themselves without leaving any indication that potential sabbteur, has concluded ht l
and therefore exempt from the compromise has occurred. De objection on balance the public interest is better restrictions. An expbcit statement was to storing anywhere in a controUed served if aD safety.telated studies are added to the rule in th!s regard. De access or protected ana is based on the Commission. efter canful consideration. free access this would a!!ow to anyone available for scrutin.no question also.
concluded that b restrictions on the in these areas. However, the rule has arises concarning tb legali of i
withholding information un er Section use of unsecured telecommunication.
been changed to delete h requirement 347 that is neither related to a licensee's circuits needs to be retained inthe rule that the security storage container be in physical protection program nor to assure that Safeguards Informstion is a lockedroom whenincide a controDed produced in response to ucurity not lost or ce= promised without the access or protected area.
considerations.
knowledge of the person roeponsible for Other commenters objected to %
its protection. Dare is no indicatf on requirernent foe control of (7) Deletions of Certain Typu of Information-One commenter suggested that these restnctions will unduly Informa tfon by an individual in burden the licensee or the NRC staff ase within a controUed access or that it would be unlawful to include informstion reg off. site response during routine !! censing mattae ce protected area. no Comm!selon agre**
forces, shlpment och dules and transport activities. For example, that some relaxation is warranted on periodic caU. ins required during '
,this matter; however, the basic locations of ufehavens in that these shipments can be made natng requirement has been left in the rule and items are not " security measurss" as set prearranged signals or an operating guidance has been provided to indicato forth in section 147.De C* don that under certain conditions the general disagrees on this point. NRC regulations code.
(4)Restricr/ons on Use ofADP control exercised over controUed access require licansees to make arrangements Systems--Co=menters stated that the and protected anos would satisfy the with State or local police forces for meaning of an "ADP eystem" was not requirement.
response to safeguards emergencies. For cle:r. that facilities without on. site One commanter noted that the fixed sites these arrangements an documented and become part of the capabilities would be excessively requirements to keep Safeguards facility physical security plan. For burdened, and that the restrictions Information in locked usurity
. transport of spent fuel and Category I should be removed. ne Commission containers would have an adverse disagrees noting that the problem impact on the availability of the security 1 =
_ - n _ _ M tsax.
regardmg anauthorized access to force to respond to a threat ce a Nmebe an. te's, O,
o 51722 Federal Register / Vol. 46. No. 204 / %ursday. October 22. test / Rules and Regulations quantities of highly enriched uranium persons that receive Safeguards C.htitionforAaJamo&%
and plutonium, route surveys are Inrormation.
On June 7.1977. the Northern States cenducted by the NRC stuffin order to Require records to be kept for any Power Company and Wisconsin Electric determine what police response could Safeguards Information transmitted of-Power Company petitioned the Nuclear be expected in an emergency, the alte.
Regulatory Commisalon to amend 10 location of:are havens, and zones pf Require that s Ifet be kept of persons OR so.34(c) so as to laclude plant weak radio-telephone communicau6ne.
who have a need.to.know.
securityinformation within the De informstion gathered is documented Note that distribution. reproduction.
deAnttion of Restricted Data, or. f end transmitted to the licensee for and destruction of Safeguards alternatively within the deAnition o inclusion in his physical protection plan. Information need not be docussented.
Netional Security Information, to amend in this regord, the U.S. District Court for laclude a document exclusion listin to CFR 2.305 so as to assure that the District of Columbia has recently the rule.
discovery of plant security information upheld the Commission's position that Add attorneys to the occipationlist is sablect to the protections of Subpart I police' response capabilitin and contained in i 73.21(c); (not necessary in to 10 GR Part 2. to amend SubpartI to
- lephone shortcomings are legitimate thet attorneys are already included in 10 CTR Part 2 to explicitly recognise that items for withholding under section 147 (c)(1) and (vi)).
Its protections extend to information not cf the Act.s Amend the dennition of Safeguards under Commisslam control, and to delete Another commenter stated that it Information to add " controlled" before 10 CFR M90(d)(1).De f%==Moe's rmght be impossible to prevent Safeguards Information.
decision on me petition. in light of the diodosure of certain informstion Add a definition for " composite plan." issuance of this rule, wiu be set forth in regarding local police forces.He.
1.imit withholding ofinformation on a separate Federal Register Notice.
Commisalon agrees in part and the rule security system weaknesses to those D.Effect/reDates has been moddied to more accurately items uven in nature.
ne *==tasion has decided to make r
reflect the originalintent that only
, (II) Commens Asgardlag Cu/ dance-ll 1744(e) 2.790(d)(1). 73.2(ji) and (11),
dete!!s of the forces committedto A number of comments were remlved and 73.21(a). (b) and (c)(1) efective respond to a facility safeguards regarding guidance needed to implement ' hamediately for good cause pursuant to cmergency need be protected.
the rule. The speciBc items mentioned the exception provided by 5 U.S.C.
(s) withholding Spent rue / Route by commenters were taken into 583(d)(3).no enumerated sections Information-Two commenters considention during the development of define the scope of Safeguards neommended that routes used for spent the guidance document.
Information protected by b rules, fusi shipments be withheld until the (12) Coat-Several commenters stated identify thow persons who are shipments have been completed.nis is that the estimated costs for permitted access, set forth certain cet a matter for Commission implementing the rule were toolow.
protections aforded by the Commission deliberation. Section 147 contains an particularly in regards to storage during to such information, and provide certain explicit statement that "Nothing in this the construction phase, protection at
.protections for physical protection and Act shall authorize the Commission to licensee contractor facihtlw and material control and accounting prohibit the public diadoeurs of recurring labor.De Commission has
. information not otherwise designated as information pertaining to the routes and nvind its utimates as foUows. A Safeguards Information or classtSed as value. impact analyses is avausb(le in'tbe ~ National Security Information or quantitles of shipments of irradiated gudear nactor fuel."
Public Document Room.)
Restricted Deta. Rese sections alone (9) Limit Regulations to Ports 2 and impose no new requirements on s--One commenter aussested that the sm.
l n
e
=a Beanaen or obrpenons outside b Ifeensed industry be allowed to devise Its own methods of protection, that um
==== s wo ce==== ses name==i agency.
Immediate efectiveness of these specific requirements be deleted from s**m,,,,*r su,,co,,7=,,,,,jmam
. sections is warranted to avoid further
=
Pan ~3 snd that Parts 2 and 9 contain
,w,,
y,,
= =i temi assuno ddayin implementing b Congnesional dinctives that Safeguards Information s-.1 _
w s"'"
intent in enacting Section 147 of the be protected. As is stated elsewhere. b vas asesso teen sisam" Commission believes that without Atomic Energy Act to provide protection formal requirements (which are from public disclosure for certain considered to be the minimum (t3)PublicAnnouncement-One speciSed types of Safeguards restrictions that provide an acceptable
-commenter noted that some firms who laformation. Since the rule also. codifies les el of protection) there would be no may have SafeguardsInformation are curnnt Commission procedun as to essurance of uniformity or consistency,. not part of an information network that what types ofinformation are protected.
Comments received indicate there is no would inform them of the existence of immediate efectiveness of thon geeral ag eement in the licensed this new rule. De Commlulon agnes Provisions will.not adversely afect industry concerning what constitutes a that special effort is needed regarding Commissionlicensees or others in public dissemination of the rule. In Possession of Safeguards Informatio'n.
naa!mem level of protection.
(10) Other Comments-Following is a addition to the normal practice of The remaining provisions of b rule list of other comments on minor matters publication in the Federal Register and will be efective on January 20,1981.
that were not incorporated into the final distribution of NRC public E.Poperwork Reduction Statement rule on the basis of no demonstratable announcements the Commission intends
%ere are no reporting or assd or benefit:
to (i) encourage licensees to notify bit recordkeeping requirements contained Show that the licensees are not contra ctors. suppliers. and local police in this regulation and therefore it is noi responsible for compliance by other neponse forces. (ii) send out a special " subject to OfBee of Management and.
mailing to nuclear service firms that do Budget clearance as required by Puh.1.
business with power reactorlicensees,96-611.
EM$7[7My and (till invite certain associations to ne promulgation of these
.pp.t) notify their members.
amendments would not neult in any
2 Federal Register / Vol. 46. No. 204 / Thursday. October 22. 1981 / Rules and Regulations 51723 activity thet affeets the environment. -
received and possessed by a party other UAC anot(o)) and the Laws referred to li Accordingly, the Coromission has than the Commission staff. it shaU also A T"~
determined under the Wetional be protected according to the Environmental Quality pide!!nes and mquirements of I 73.21 of h chapter.^ a ne. Secdon 30.34 is amended by ad 8
the criteria of to Cm 31.5(d) that neither The presiding officer may also prescribe w paragraph (e) to read as foUows:
an environinentalimpact statempnt nor such additionalprocedums as will 49CJ4 Centente of appeseMones testudsef j
environmentalimpact appraisal to effectively safeguard and prevent tWormemen, support a negative declaration for the diadosure of Safeguards Information to proposed amendments to Title to is anauthorized persons with minimum (e)Each applicant for a license to recuired.
Impairment of the proceduralrights operete a on or utilisation ibrsuant to the Atomic Energy Act of which would be avallable if Safeguards facihty, w yelcal 1954, as amended, the Energy Information were not involved.In security plan,prepans a contingency a
Reorganization Act of1974 as amended. addition to any other sancdon that may plan, or a guard cation and and sections $52 and 553 of Title 5 of the be imposed by the prest ofBcerfor training plan, shall protect the plans and United States Code, the foUowing violation of an orderiss pursuant to " other related Safeguards Information '
t amendments to Title 10. Chaptar L Code this paragraph. violation of an order against unauthorized disclosumin of Federal Regu!s tiona. Parts 2. So,70, perta to the disclosure of accordance with the a.". ents of l
and 73, are published as a document Safegu Information protected from l 73.21 of this chapter, as appropriata.
v subjeet to codification.
disclosure ynder section 147 6f the S. Seedon 3034 is amended adding i
Atomic Energy Act, as amended, snay be a new paragraph (e) to read as pART 2-MUI.ES OF PRACTICE POR subject to a dv0 penalty imposed DOMESTIC LICENSING PROCEEDINGS pursuant to l 2.205. For the purpose of I8044 conduensetitsenosa.
l
- 1. The authority citation for Part 2 is imposing the criminal penalties nvised to ned as foUows:
contained in section 223 of the Atomic (v)Each Dconsee subject to the Autbody S+ca. tesp and 181. Pub. L as-Energy Act, as amended, any order requinments of Part 73 of this chapter Issued parenant to this parasreph with shau ensure that physical security.
'.)
e[tet.
respect to Safeguards Information shaU aafeguards contingency and guard t
a i
sis. re Stat. 40s (u UAC 224th sec. 201. as be deemed an orderissued under quahScation and training plans end,
I amended. Pub L 33-434, as Stat 12u (42 section 161b of the Atomic Energy Act.
other related Safeguards Information are L
US C 5a41) ts UAC 562) unha othwwtw protected against unauthorized noted. Sections 2.200-1206 also ineved und*r sec. tat Pub. L as-m3, as Stat, esa (42 UAC
- 3. Section 2.790 is amended by disclosure in accordance with the 2230) and sec, act Pub. L 93.-434, as Stat.
revising paragraph (d)(1) as follows:
requirements of I 73J1 of this chapter.
1246 (42 UAC 5646). Sections 2.aao-2.aos
{ 2.790 Put no C h esempeone, as appropriata.
also tesued under s UAC Ss1 Section Laos requessa for C Q PART 7th. DOMM LICENSING OF
- P,l"e"iad"!&'n'"ts SPEC A1. NUCLEAR MATERIM.
d
'd "' " "
t a
Pub. L 06-2os. F1 Stat 14a3 (a UAC 250),
- 2. Section 2.744 is amended by adding -
Correspondence and reports to or'
- y. The authority citation for Part 70 is a new paragraph 5 2.744(e) to read as
- from the NRC which centain infonnation avised to read as follows:
foUows:
or records concerning a licensee's or Astbedty:Seca.st sa,tet.in tas,se applicant's physical protection or Stat. J28. f30, u amended, sea, u amend 6d.
1 2.744 Production of NRC recordsaseg material control and accounting bogram 963. as amended,354 (C UAC 3D71. 3D73, dooumenta, for spedaltraclear material not 2an 2232. 2233) Sees. act zoa, es Stat.1344.
l Otherwise deelgnsted as Safeguards 124s 42 UAC 5642. 8446) malass othewise (e)In the case of requuted documents Infonnation or classified as National and records (including Safeguards Security Infonnation or Restricted Data.
yw the pwposes of set 22. W Stat. We, u amended (a UAC 22rs), il ms, mas (ck Informstion referred in la sections 147 Fo.rt(et m22 (et (bk (d)-(kk m24 (a) and and 181 of the Atomic Energy Act, as PART 50 bCENStNG OP (b) m32(a) (3), (sk and (It 70.m mae (b) amended) axempt from disclosure under and (c). met (et m42(e) and (et Fo.sa, are 12.790, but wbose disclosure is found b# PRODUCTION AND UTILIZATION leeued undw sec. totb, as Stat. etc. as the presiding officer to be necessary to a FACIUTIES amended (c UAC zam(b)h li maon(dL proper decision in the proceeding, any 4.b authority citation for Part 30 is m:2(a)(e) (c), (dt (el and (s17ttsa, mat (c).
(gt mm msrtb) and (d), ro.sa(aHs)(31 and I
order to the Executive Director for revised to read as follows:
(h).U) are tesued andw sec.181. es Sist. 848.
Operations to prodace the document or -
records (or any other orderissard T 8' I"
- I" I" I" I"'
m amended (u UAC 2:01(111 and il m32(bt mat!b) and (11 ms2. 70.s3,7tLs4.
ordering production of the document or du 21 zan' 70.58, m34(s)(4) (k) and (1), maa, are tasud records) may contain such protective 2233,2230) Seca an Jos, Joe, as Stat.1243, anda ac mo, M Set tu as amandd (c -
terms and conditions (including ue4.1244 (42 UAC sa41 sec. sNek malees affidavits of non. disclosure) as may be otherwim noted Section acJs also isend necessary and appropriate to !!mit the undw Sec.122. 84 Stat. sae (42 UAC 2152k
- 8. Section 7022 !s a5 ended by adding l
disclosure to partjes in the proceeding.
SectJoas so.ao aast aho twued under Sec.
a new paragraph (I) after paragraph (k) to read as fouows:
to interested States and other te4. es Stat. es4. u amended; (42 UAC.
governmental entities participating 2234k Seedona satum Isaud ander l70.22 Contents of appeessona, pursuant to i 2.715(c), and
- cheir Sec.1se, se Stat ass. (u UAC 2230). For the qualified witnenes and connul. When l
Safeguards Information protected from e ! (c U.S I
luud (1)Each applicant for a license to d!* closure undar section 147 of the anda sec. tett, as Stat see; (42 UAC Po*8esa. noe, transport, or dahver to a 2oos[gt II sam soft. and so.7s toeved carrier for transport formula quantities Atomic Energy Act, as amended,is under Sec. toto, es Stat sea, as amended; je2 of strategic special nuclear material.
m_
\\
' Bd24 Federal Register / Vol. 46. No. 204 / Thursday. October 22. 1981 / Rules and Regulations i
who preparee e phyelca! security, 8 73.2 Dennfuena.
operate s nuclear' power reactor, or13)-
transports, or delivers tJ a carrier for safeguards contingency, or guard quahtication and training pfan shall
[JJ) Safeguards Information" means transport, a fohnula quantity of strategic protect these plans and other related Information not otherwise classifed as speda! nuclear material or more then.
Safeguards Information against National Security Information or.
100 grams of irradiated reactor foal, and unauthorized disclosure in accordanca Restricted Data which speciScally each person who produces. soceives, or with the nquirements of I 73.21 of this identi5es a licensee's or applicant's acquins Safeguards Information shall detailed. (1) secudty measures for the ensure that Safeguards Information la chapter.
- 9. Sectico 70.32 is amended by adding physical protection of spedal nuclear protected against unautherfaed a new paragrsph U) to reed as follows:
material or (2) security measures for the disclosure.To meet this general physicalprotection andlocation of performance requinment, licensees and I70J2 Condmons of sooneek certain plant equipment vital to the persons sub}ect to this section shall safety of production or utilisation establish and maintain an information (j)Eachlicenses who possesses a id*cilities.
protection system thatincludes the formula quantity of strategic spedal (kk)"Need to know"means a measures speelfled in paragraphs (b) nuclear material, or who transports, or determination b'y a person having erough (i) of this section. Information delivers to a carrier for transport, a responsibility for protecting Safeguards protection procedures employed by formula quantity of stratepc spedal Information that a proposed redpient's
. Stats and local police forces are deemed nuclear material or more tnan 100 grams access to Safeguards Informationla to meet these requirements.
r f irradiated reactor fuel shaB ensure necessary in the performance of ofBdal' (b)Isformation & hepmected.%e that physical security, safeguards contractual, orlicensu duties of speciSc types ofinformation.
contingency, and guard quali5 cation employment.
documenta, and reports that shaB be and training plans and other related (li)" Person"means (1) any
- ' prokckd an as foDows-Safeguards Information an protected individual, corporstion, partnershi{c or
- 1) PhsicalPmk.-flon of TimedSiks.
Srm, association, trust., estate, pub ormation not otherwin classified as egelnat unauthorized disclosure in cccordance with the requirements of private institution, up, government Restricted Data or National Security
-l 73.21 of this chapter.
agency other than Commission or Information relating to the tection of
- c,'
facilities that possess form quantities
~
PART 73-PHYSICA1. PROTECT 10N OF (
of strategic special nuclear material, and PLANTS AND MATERIALS considered a person to the extent that power reactors.Speciacally:(1)De f cuid b
e 11 63 composita physical security plan for the
- 10. De authority dtation for Part 73 is Iyd relate $ ng$t a tho ity a the nuclear faculty w site.
s revised to nad as Hows. -
Commiselon pursuant to section 202 of ii) Site speci5c drewings, diagrams.
Authertry: Seca. 53.147.1stk 1 1t.1s10.
the Energy Reorganization Act of1974 sk(etches, or maps that substantially Pub. L as-ros, es stat. sac, asHoo, as
- and sections 104,105, and 202 of the des features of the k
pU'N.'es*
Uranium M1!! Tallings Radiation Control repn]t the Act of 1978), any alate or polltical y
pro on sys em.
iii) Details of alarm systemlayouts Pub.1. so-2cs, e4 Stat. Ten (42 USC 203.
subdivision of a state.sr any political 2201. 22s7); sec. 201. Puk L sHas, es Stat.
sh(owing location of intrusion detection 1242.1243, ee amended. Puk L e6-se, as Stat.
subdivision of any government or -
devices, alarm sueeament equipment.
413 (42 USC 5441). For the of sec.
- nation or other entity; and (2) any lega}
alarm system wiring, emergency power 222. as Stat. 954, se amend 42 USC 22n.
successor, representative, agent, ce sources, and duress alarms.
I rass is i.eued under sec. toth as Stat. 96s' ncy of the fhoingtorage Container"(iv) Written physical security orders h* Nn mm)"Securi includes any of the following -
and procedures for members of the 7
7s.45, es.
8 1stL es Stat. see, se amended. 42 UAC r*Positories: (1) For storage in a building security organizetion. duress codes, and n.50, nas, and n s7 am toeved under sec.
2 rot (f): and il 73.2NcNJ). nJ4(b)(1).
located within a protected or controUed patrol schedules.
(v)Detaus of the on. site and off. site n.2e(b)(3) (b)(s). (I)(s), and S)(4). 733 (el access area, a steel filing cabinet and (b). 73 to(b) and (d). n.4e(s)(s), and equipped with a steellocking bar and a communications systems that are used (b)(2), nJols)(2). (3)(W)(B) and (h).
thru position, changeable combination.
for security purposes.
rs.sHb)(2), and (4)(WXB). n.ra n.n. and GSA sp roved padlock:(2) A security
' (vi)tock combinations and n.72 a su nd o es Stat.esoL filina ca inet that bears a Test.
mechanical key design.
g g
Certi5 cation Label on the side of the (vil) Documents and other matter that it. Section n.1 is amended by adding locking drewar, or interior plate, and is containlists orlocations of certain-foUows:
Administration Approved Security -
sefety-related equipment explicity a new paragraph (b)(7) to read as marked. " General Servicoe identified in the documents as vital for Catainer" on me aceriw of ee top purposes of physical protection. as i n.1 Purpose and seeps.
drawer er doort (3) A bank safe-deposit contained is physical security plana.
(
box: and (4) Other repositories which in safeguards contingency plans, or plant
.g,,,
the judgement of the NRC.would specine safeguards analyses for (7 This part prescribes requinments sical protection. producif on or utilization facilities.
p[Mde a sparsWe for t e' protection of Safeguards A new I u is a ded to med as (viii) ne composite safeguards Information in the hands of any person, g ***.
matingency plan for the facility or site.
whether or not a IIcensee of the Comminion, who produces, receives, or i n.21 Meguirements for the Fu m of (ix)Those portions of the faculty acquires Safeguards Information.
esksuords hformeteori.
- guard qualiScation and training plan (s) Genem/ performance requirement which disclose features of the physical
- 12. Section 73 2 is amended by adding Each IIcensee who (1) posusses a
'secunty system or response procedures.
new paragraphs (jj). (kk}, (11) and (mm) formula quantity of strategic special (x) Response plans to specific threats nuclear material. or (2) is authorized to detailing size, disposition response to read as follows:
I
'l Federal Register / Vol. 46, No. 204 / hrsday. October 22. 1981 / Rules and Regulations 81725 l
times, and armament of responding Commission. or the United States be destroyed by any method that forces' Government:
assures complete destruction of the (xi) Size. amament, and dispoettion of (U) A member of a duly authorized Safeguards Information they contain.
on site reserviforces.
commrnittee of the Congress; (g)Krterna/tronsm/as/en of (xu) Size identity, armament, and (iii)ne Governor of a State or documents andmaterial. (1) Documents strival times of off site forces committed designated reprwentatives:
or othw mattw containing Safeguards to re3oond to safeguards emettendes.
(tv) A representadve of the Idormadon when transmitted outside (2) Physico/ protection in trans/L Intentional Atomic Energy Agency Information not otherwise classiSed as (IAEA) engaged in activities associated an subdad place Muse or storage.
Restricted Data or National Security with the U.S./!AEA Safeguards shdl be packaged k pclude disclosure Information relative to the protection of ment who has been certi8ed by -
g ge punce of protockd informadon.
shipments of formula quantities of (g) Safeguards Information usay be strategic special nuclear material and (v) A member of a state orlocallow transported by messenger.coarler, spent fuel. Speci!Ically:(1) no enf,orcement anthority that is United States Srst class. registered, m
Pon g luw a
- s. or cert 18ed mall, or by any' composite transpertation physical,
g security plan.
ed dualauthorised acosse pursuant to 573.21(c).
(U) Schedules and itineraries for
]padyndual to whom disclosure (3)Except under em or~
Ani speciSc shipments. (Routes and l
quantities for shipments of, spent fuel is ort ered pursuant to l 2.744(e) of this i
. are not withheld fran public disclosure.
chapter.
extraordinary conditions, eguards Information shall be transmitted only by (2) Except u b r d.=fe may protukd klecommaicadoes dmuits g
- i Schedu!es for spent fuel shipments may i
be released to days after the last otherwise authorise, no person may (tacluding facsimile) approved by the shipment of a current series.)
dadme Sdeguards Idomadan to any NRC, Physical acurny ensts mquired other person t as setlorthin to be reported pursuant to I 7351 are (111) Details of vehicle immobDisation. paragraph (c) this section. ~
ecosidered to be W.
inary features. intruslon alarm devices, and communication 'Y8kS* -
(d) Protection while in mee or storgte.
osadidons.
(1) while in um. matter containing (lv Arrangements with and Safeguards Infennation shall be under (b) un ofautomaticdate 4-capa ilities oflocal pollos respon".
the control of an authorized ladividual.
gap) systems. Safeguards dod may be proceswd or[that the syste forces, and locatiene of safe havens roduced on an (2) While unattended. Safeguards ADP system provide (v) Details regardmg limitations radio. telephone communications.,of Information shall be stored in a locked self. contained within the licensee's or security storego container. Knowledge vi) Procedures for response to oflock combinations protecting his contractor's faduty and nqdru the ~
eguards emergendes.
Safeguards Information sha!! be Ilmited asiof an entry code for access to stored (3)lnspections. oudits and to a =f al=um number of personnel fo information. Other systems may be need
(
ero/uotions. Information act otherwise if 8pA f# security by the NRC. -
d know" ankurposes who have a "need to (I)1temordhom Sofsyvardt operating classified as National Secertty are obrwtw enthorized Informstion or Restricted Data relating access to Safeguards Information in.
Infumotma octeguy. naaaaants.
(
to safeguards inspections andreports.
secordance with the provisions.of this originaDy containing Safeguards t
SpecificaUy-wcdon.
Information shall be removed fross the (1) Portions of safeguards inspectlen (e)preparoclon andmar&% of Safeguards Mwmados categmy reports, evalue tions, audits, or documents. Each document or other-wheneve b infonnsdon no icogn investigations that ocetain details of a matter that contains Safeguards muts%e cruaria containedin this licensee's or applicant's physical Information as defined la paragraph (b) section.
security system or that disclose in this section shall be marked
- 14. Section 73.80 is revised to read as uncorrected defects, weaknesses, or
" Safeguards Information"la a follows:
vulnerabilities in the system.
conspiruous manner to indicate the Information regarding defects.
pmsence of tected information II8#
weaknesses or vulnerabilities may be (portion is not required for the Aninjunction or other court order refsases after corrections have been specific items o information set forth in may be obtained prohibiting any made. Reports of investigations may be paragraph I 73.21(b) other than guard violation of any provision of the Atomic
, released after the investigation has been qualification and training plans and Energy Act of1954, as ampaded, or any completed. unless withheid pursuant to correspondence to and from the NRC).
' ngulation or order issued thereunder. A other authoritin, e.g., the Proedom of Documents and other matta containing court order may be obtained for the -
Information Act (5 U.S.C. 552).
Safeguards Information in the hands of payment of a dvilpenalty imposed 6
(4) Correspondence. Portions of.
contractors and agents oflicensees that Pursuant to section 234 of b Act for correspondence insofar as they contain were produced more than one year prior violation of section 53. 57. 82. 83. 31,82.
Safeguards Information sped 8cally to the effective date of this amendment 101.103.104.107.100, or 147 of the Act.
defined la paragraphs (b)(1) through
' seed not be marked unless they are or section 206 of b Energy (b)(3) of this parsgraph.
removed from storage containers for Reorganization Act of1974, or any rule.
(c) Access to Safeguards Information, see.
regulation, or order lasued thereunder.
(1) Except as the Commtmaton may (f) Jteproduction anddestruction of or any term, condition, or limitation of otherwise authorize, no person may -
mattercontainingSafeguards any license issued thereunder, or for any have accus to Safeguards Information Information.jt} Safeguards Information, violation for which a license may be unless the person has an established may be sproduced to the minimum revoked under section 186 of b Act.
'need to know" for the information and extent necessary consistent'with need Any person who willfully violates any is:
without permission of the originator.
provision of the Act or any regulatio?' or (i) An~gmployee. agent, or contractor (2) Documents or other matter order issued thereunder may be guilty of of an applicant, a licensee, the.
contalning Safeguardsinformation may a crime and, upon conviction, may be
Federal Register / Vol. 46 No. 204 / Hursday. October 22.1est / Rules and Regulations 31726 punished by fine orimprisonment or
~
both, as provided by law.
Defed a Weehington DL this 19th day of October.19et.
For the U.S. Nuclear Regulatory Commission.
,+
samuel J. Chuk, Secretaryof the Commiseion gra on. n. amass rmd maa, mes ]
an.use caos russes.m 0
N N
4 e*
e@
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD Richard S. Salzman, Chairman Dr. W. Reed Johnson' Thenas s. Moore
)
In the Matter of
)
)
PACIFIC GAS AND ELECTRIC COMPANY
) Docket Nos. 50-275 OL
)
50-323 OL (Diablo Canyon Nuclear Power Plant,)
Units 1 and 2)
)
)
PROTECTIVE ORDER ON SECURITY PLAN INFORMATION Counsel and witnesses for Intervanor ' San Luis Obispo Mothers for Peace (Intervenor) who have executed an Affidavit of Non-Disclosure, in the form attached, shall be permitted' access to " protected information"2L/ upon the following condi-tions:
OnlyIntervanor'scoEselandIntervanor'sexperts 1.
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 Order of February 25, 1980 in this pro-ceeding, may have access to protected information on a "need to know" basis.
- /
As used in this order, " protected information" has the same meaning as used in the Affidavit of Non-Disclosure, annexed hereto.
s
~ ~
2., counsel and experts who receive any protected infor-mation (including transcripts of in, camera hearings, filed testimony or'Any other document that reveals protected infor-mation) shall maintain its confidentiality as required by the annexed Affidavit of Non-Disclosure, the terms of which are 4
hereby incorporated into this protective order.
3.
counsel and experts who receive any protective infor-nation shall use it solely for the purpo'se of participa, tion in matters directly pertaining to this security plan hearing and any further proceedings in this case directly involiing security matters, and for no othe~r purposes.
~.
4.
Counsel and experts shall keep a record of all pro--
tected information in their possession and shall account for
~
anddeliverthatinformationtotheCommissionofdicialdesig-nated by this Board in accordance with th'~e Affidavit of Non-
~.
l Disclosure that they have executed.
I i
5.
In addition to the requirements specified in the Affidavit of Non-Disclosure, all papers filed in this pro-ceeding (including testimony) that contain any protected information shall be segregated and:
~
(a) served on lead counsel and the members of this Board only; (b) served in a heavy, opaque inner anvelope bearing the name of the addressee and the statement " PRIVATE.
O e
l e
TO BE OPENED BY ADDRESSEE ONLY."
Addressees.
shall take all necessary precautions to on-sure %at they alone will open envelopes so marked.
6.
Counsel, experts or any other individual who has rea-son to suspect that documents containing protected information may have been lost or misplaced (for example, because an ex-pected paper has not been received) or that protected informa-tion has otherwise become available to unauthorized persons shall notify this Board promptly of those suspicions and the reasons for them.
It is so ORDERED.
FOR THE APPEAL BOARD dA.IJ7 / m)
Richarg/S' Sal Chas.rman p
Done at San Luis Obispo, California, this 3rd day of April, 1980.
e 8
e 9
4 e
e l
l
s UKITEDSTATEbGFAMERICA EUCLEAR REGULATCST CCMMISSICO ATOM 3C SATETY AND LICENSING APPEAL BOARD
~
)
In the Matter of
)
Docket Mos. 50-275 OL PACIFIC CAS AND ELECTRIC COMPANY 50-323 OL
)
(Diablo Canyon Nuc' lear Power Plant,)
Units 1 and 2)
)
e
)
AFFIDAVIT OF NON-DISCLOSURE
~
1,
. being duly sworn, state:
1.
As used in this Affidavit of Non-Disclosure,,
(a) " Protected information" is (l') any form of the physical security plan' f or the licensee's Diablo canyon Nuclear Power Plant, Units 1 and 2; or (2) any information dealing with or describing details of, that plan.
(b) An " authorized person" is (1) an empiqyee of the Nuclear Regula-tory Consission entitled to access to pirotected information; (2) a person who, at the invitation of the Atomic Safety and Licensing Appeal Board (" Appeal Board"), has executed a copy of this affidavit; or (3) a person anploye.d by Pacific Cas and Electric Conpany, the licensee, and authorized by it in accordance with Commission regula-tions 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 proceeding.
I will safeguard protected G
information in written form (including any portions of transcripts of jirl camera hearings, filed testimony or any other documents that I
contain such'information), so that it remains at all times under the
=cr. trol of an authqrized 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 v51ch contain any protected information by means of the followings (a) my use of the protected information will be 'made at a facility in San Francisco to be made available by Pacific Cas and Electric C.ompany.
(b)
I will keep and safeguard all such material in a safe to be ob'tained by intervanors at Pacific Cas and Electric Company's expense, af ter consultation with Pacific Cas and Electric Company and to be located at all times at the above designated locat(on.
(c) Any secretarial work performed at my request or under my supervision will be performed at the above location by one secretary of intervanor's designation.
Intervenors shall furnish Pacific Cas,and Electric Company, the Board and Staff an appr'opriate resume of the secretary's background and experience.
~.
(d) Necessary typing and reproduction equipment will be furnished by Pacific has and Electric Company.
(e) All intervenor mailings involving protected information shall be made fron"the facility furnished by Pacific Cas and Electric Co.
w-
,3_
(.
If I prepara papers containing protected information in order 5.
to participate in.further proceedings in this case, I will assure that any secretary os other individual who aust receive protected information in order to help me prepara those papers has executed an affidavit lika this one and has agreed to abide by its terns.
Copias of any soci af fidavit vill be filed with the Appeal Board before I reveal any protected e
information to any such person.
I shall use protected information only for the purpose of 6.
preparation for this proceeding or any further proceedings in this case dealing with security plan issues, and for no other purpose.
T I shall keep a record of all protected information in my possession, 7.
At the including any copies of that information made by or for me.
~
conclusion of this proceeding, I shall account to the Appeal Board or to a Co==ission employee designated by that Board for all the papers *.
or other materials containing protected information in my possession i
t and deliver them as provided herein. When.I have finished using the I
protected information they contain, but,in no event-later than the conclus ion of this pioceeding, I shall deliver those papers and materials to the Appeal Board (or to a Commission employee designated by the Board), together with all note.s and data which contain protected information for safekeeping during the lifetime of the plant.
I nake 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 publicly discuss or disclose any protected information that I receive by any means whatever.
4 e
-i
_. ~
(,
e Subscribed and sworn to before me this day of April, 1980
)
l I
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e s
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9 e
0 44 4
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i 1
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Cne es 11 MC 775 (1980)
CU 80 34 UNITED STATES OF AAERICA NUCLEAR REGULATORY CohWISSION 1
COMMIS8800ERS John P. Ahearne, Cheltmen h Gilinsky Joseph M. Hendrie Peter A. Breallord in.the Matter of Docket No. SM5 OL so. :: oL PACIFIC GAS AND ELECTRIC COMPANY (Diablo Canyon Nuclear Power June 11,1900 l
Plant, Unit Noe.1 and :)
Acting upon petitions to review ALAB-592 rded by appt%t and l
intervenor, the Commission upholds that part of ALAB-592 requinng that the security plan be made available (under a protective order) to intervenor's couasel and expert witness; rules that a protective order issued by a board may not constitutionally limit public disclosure ofinformation I
obtained outside the beanng process; and remands the matter to the Appeal Board for pon as to wluch of two specirmed procedures should apply to the disclosure ofsuch outside information.
~
RULES OF PRACTICE: SECURffY PLANS The adequacy of a nuclear facility's physical security plan may be a proper subject for challenge by intervenors in an operating license proceeding. Consolidated Eduon Canpany of New York (Indian Point Station, Unit 2),7 AEC 947,949 (1974). Commission regulations contemp-late that sensitive information may be turned over to intervenors in the pracea4 ng under appropriate protective orders.10 CFR 2.790.
e T15 l
i
RULES OF PRACDCE: PROTECHVE ORDERS Protective orders may not constitutionally preclude pubbe dissemination of information which is obtamed outside of the hearing process. See Rodgers v. United States Steel Corporation, 536 F.2d 1001,1007 (3rd Cir.
1976); International prod, cts Corporation v. Keena, 325 F.2d 403,408 (2d Cir.1963); and In Ac #alkin, 598 F.2d 176,195, n. 45 (D.C. Cir.1979).
RULES OF PRACHCE: PROTECUVE ORDERS A person subject to a protective order is proldbited from using protected infonnation gained through the hearing process to -.mbc46te the accuracy or inaccuracy of outside information. Moreover, the Commi==non discour-ages participants in Commission proceedings from gathenng protected information from independent means and publicly disseminating such information.
MEMORANDUM AND ORDER On April 11, 1980, the Appeal Board issued a Second Prehearmg Conference Order (ALAB-592) directing that representatives ofintervenor, San..Luis Obispa, Mothers for Peae, be provuled access to a sanitized version of the Diablo Canyon physical security plan. The Board daracted that the plan be released to intervenor's counsel and to its expert witness under the terms of a protective order and upon execution by these individuals of an affidavit of non disclosure. On April 14,1980 the applicant, Pacific Gas and Electric Company (PGAE) filed a motion with the Commission seeking a stay of the Appeal Board's order and also fded a petition requesting Commission review of the Board's decision to release the plan to the intervenor. PGAE opposes turmng over the sanitized physical security plan to the intervenor because it believes that there is inadequate assurance that one of intervenor's counsel will abide by the terms of the affidavit ofnon-disclosure. On April 21,1980, the Commission issued an order directing that the sanitized physical security plan not be turned over to the intervenor unless and until the Commission so directed.
~ ~On April 23, 1980, intervenor filed a motion with the Commincion 776
i requesting a stay of the Board's order and petitioning the Commi review the Board's decision. Intervenor believes that one of the y.Z=
- of the proposed amdavit of sc: 5% is _- - - D*-'Inte pleading opposing intervenor's anotions; and the NRC staff Ale opposing the requests of both PG&E and abs interveno for revww fUed by PG&E, and has granted the petition for review Se ra==imina has acted upon the pentions for the intervenor. Because the review, the sootions to stay the Appeal Board order are moot and th Co== inion wiu not rule upon them.
In its petition for review PGAE argues that the physical escarity f
should not be made available to petitioners because the best asethod preventing public disclosure of this sensitive document is to m ra==i=ian available to the fewest number of individuals possible. The ra==i recognnes PGAE*s concern, but emphamass I
and that the applicant's proposed physical security arrangemen information may be turned over to intervenors in NRC proceedags un In this proceedag the Appeal Board in appropriate protective orders.8 ALAB-410, 5 NRC 1398 (1977) and in its Second Order of Apri!
under what conditions physical security plans may be made available intervenors. The Commission has reviewed these orders, and with the exception noted below, endorses the guidel interpreting the law and balancing competing Canyon physical security plan wisely.With respect to the one orintervenor's counsel is likely to abide by the terms c(the protectiv order and amdavit of non-disclosure, we noted that the individual h assured the Appea! Board that he will abide by the terms of the pr order and the affidavit of non-disclosure. As a memb Supreme Court of Califorma, he must be acutely aware that demonstrated that he has breached these agreements, his license law could be placed in jeopardy. We believe this possible sanctio A esissMared E&osi Cassy=y of ##w York (tadian Point $sation. Unit 2 C
- The regulations are consistent with the policy set forth is $sctica 18I (1974).
Act.
777
assurances, are sufficient grounds to conclude that the counsel will abide by his commitments. We therefore daset that PG&E make the sanitiand version available to the intervonor.
Intervenor challenges a provision of the proposed amdavit c(nonsbacio.
sure which would prohibit those subject to the protective order and amdavit of non. disclosure from publicly discussing or commenting upon protected information which isiobtained (a) outside of the course of this proceedmg or (b) which has been publicly dela e by others. Intervenor argues that this limitation violates the First A=*ad=*at of the Constitu-tion.
The Commission agrees with the intervenor. In several recent cases, the courts have made clear that protective orders may not constitutionally preclude public dissemmation ofinfornstion which is obtained outside of the hearing process. See Rodgers v. ChiltedStater Sssef Corporation,536 F.2d 1001,1007 (3rd Cir.1976); International prodacts Corporation v. Koont, 325 F.2d 403,408 (2d Cir.1963); and In Re Walkin, 598 F.2d 176,195, aA5 (D.C. Cir.1979).
In reaching these conclusions the Comminaion wishes to emphasize two points. First, the amant making the public disclosure is prohibited from corroborating the accuracy or inaccuracy of the outside information by using protected information gained through the beanng process. Second, l
the Commission discourages participants in C==:a4 proceedags from 5
gath'ering protected information from iadap-ad-at means and publicly disseminating such'informatiog Chanman Aheame and Cn==:=*ioner Hendrie believe that before intervenors publicly dia*=inte protected information Sair.3d outside the beanng process they should be required to establish to the satisfaction of the board presiding over the Commission proceedmg - in the present case the Appeal Board - that the information was in fact gained outside of the hearing process. Commissioners Gilinsky and Bradford do not believe that the parties should be required to secure prior Appeal Board clearance. They believe that any such clearance procedure is an unconstitutional prior restraint. Because the Commission is divided on this matter it remands this issue back to the Appeal Board and directs the Board based on its own reading of the law to select one of these two options. After maug its
- decision the Appeal Board shall modify the affidavit of non-disclosure so that it' conforms with the Board's decision. The Board's decision sill not be reviewed by the Commission. As soon as intervenor's counsel and witnesses 778
have executed a revised amdavit o(non " '-
m, PO&E is to make the sanitised version of the physical security plan available to these individuals.
It is so ORDERED.8 For the t'M SAMUEL J. CHILK Secretary of,the Comunission Dated at Washagton, D.C.
this lith day of June 1980.
AbDf!10NAL VIEWS OF COMMISSICNER BRADFORD
)
I agree that the First Amendment prohibits an sfidavit which forecloses public comment on protected information obtain A outside the proceedmg or disclosed by others. Such a prohibition constitutes a prior restraint on the speech of the intervenors in violation of the First Amendment. Ao(gers
- v. United States Stect Corporation, $36 F.2d 1001,1006 (3rd Cir.1976). To cure this infirmity, the Commiazion amends the amdavit to renove the absolute restraint on discussion ofindependently obtained information, but leaves open the possibility of a prior restraint upon the speech of the intervenors in the form of Appeal Board clearance prior to public comment.
I do not agree that this prior restraint is permissible. It is clear that the First Amendment sought to protect not only a6ainst absolute restraints, but also against restraints which might or might not through governmental processes be subsequently htted. See hear v. Minnesota en rel Olson,283 U.S. 697 (1931).
Furthermore, this prior restrain't would be unreasonable and dascrunina.
tory in its application. An examination of such a restraint order reveals the foDowing:
1.
The purpose of such a prior restraint order must be to prevent disclosure of features of the security plan. However, our order explicitly recogmzes that the possible sanctions flowmg from M=re "are sumcient grounds to conclude that the counsel will abide by his commitments." It is not clear how the proposed restraint will be any more effective than the sanctions already in place.
- 2. The amdavits need only be signed by the intervenors, not by utility personnel or NRC employees. No showing has been made that the intervenors are inherently less trustworthy than other persons who have r-Wer Kenn.dy has mened hi. -trra, ihi, proosahns.
seen the plan, yet they are singled out. UtGity ensployees are under no NRC sametion whatsoever hoe w ; this infonnation, and they eartainly would not be requuod to come to the Board prior to shocussing the plan.' c-h staff would fhee sanctions if they
== stin with the e-:-
- . but ib.y wouw not to subject to the proposed prior restraint and would be hoe to comument upon pubbely available infonnation regardtag the security plan.
In Msn, I agree that PO&E should be requir6d to turn over the physical security plan to the intervonor. I would support a protective order which provides for an aFulavit prohibiting disclosure of the protec'.ed information gained through participation in this proceeding. I would, however, require the same amdavit Aom other attorneys and witnesses.
l af
'It is not enough to argue that the utility is the to release its own proprietary infonnation. for the pubbc health and safety consequences are all that are alleged tojustdy the ansasuret being taken.
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COP 9tISS10N
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ATOMIC SAFETY AND LICENSING BOARD BEFORE ADMINISTRATIVE JUDGES James L. Kelley, Chairman Dr. A. Dixon Callihan Dr. Richard F. Foster SEVE APR141982 I
In the Matter of h
Docket Nos. 50-413 l
50-414
)j.
DUKE POWER COMPANY, M.
~
)h (Catawba Muclear Station, Units 1 and 2)
~
April 13, 1982j J
ORDER l
The Board has received objections to its Memorandum and Order or March 5, 1982 from,the Applicants, the Ealtetto and CESG Intervenors, and the NRC Staff. The Board also acknowledges receipt of separate responses from the Applicants and the Staff to our questions about spent fuel storage I
and operator qualifications. The objections raised by the Applicants and the Intervenors are lengthy and concern a broad range of issues. Members of this Board have other adjudicatory responsibilitie's that require our attent, ion before we can consider and decide all of the points you have sought to raise',' A complete decision on reconsideration will n'ot be o
l forthcoming until lat'e May or early June.
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- n In these" circumstances, and pending our decision on reconsideration'of the Memorandum'and Order of March 5,1982, the parties are directed to*
proceed on the assumption that that Memorandum and Order will remain in full force and effect.
Should any party be served with a discovery request (1) based upon a contention of which it is seeking disallowance on reconsideration and (2) which is unusually burdensome, then objections' may be filed with the Board, along with a request for a ruling on the reconsideration request as to that contention.* If practicable, the Board
~
will then rule separately on that contention.
Discovery on Palmetto Contentions 8 (operator qualifications),15 and 16 (spent fuel storage) is. suspended pending the Board's decision on reconsideration.
The semorandum and Order of March 5,1982 asked Palmetto to inform us whether it wished to gain access to the Catawba security plan " subject to thekindsofconditionswehaveind1 hated." Jn its respnse, Palmetto informed us that it wishe.1 to pursue its contention, but said nothing about the conditions we had indicated, palmetto is to answer the following questions:
1.
Have you secured the services of a qualified security plan expert?
If you have, submit a statement of that person's qualifications and experience to the Board and parties.
This early ruling' procedure does not apply to the specificity of contentions question discussed by the Board at pp. 3-13 of its March 5 Order and argued on reconsideration by the Applicants and the Staff.
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2.
If you have no expert at this time, when and how do you plan to^
obtain one?
3.
Is the protective order entered in the Diablo Canyon case acceptable to you? If not, why not?
,The Applicants have various objections to Pal,metto's security plan contention. We need not reach those objections unless and until Palmetto has obtained the' services of a qualified security expert acceptable to the Board.
Palmetto is directed to serve the answers to the above questions by April 30, 1982.
If timely answers are not so served, Palmetto contention 23 will thereupon be dismissed, with prejudice.
FOR THE ATOMIC SAFETY AND LICENSING BOARD k
i (pfes L. Kelley, Chairma l
ADMINISTRATIVE JUDGE
' Dated at Bethesda, Maryland, this 13th day of April, 1982.
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UNITED STATES OF AhiERICA a
fiUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of CAROLINA POWER AND LIGHT COMPANY Docket Nos. 50-400 50-401 (Shearon Harris Nuclear Power
)
Plant, Units 1 and 2)
)
CERT.IFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO SUPPLEMENTAL STATEMENTS OF CONTENTION BY PETITIONERS TO INTERVENE," in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class or, at indicated by an asterisk, by Federal Express, or as indicated by a double asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 22nd day of June,1982.
- James'L. Kelley, Chairma.n Atomic Safety and Licensing Board Panel Mr. Travis Payne, Esq.
723 W. Johnson St.
U.S. Nuclear Regulatory Comission
'P.O. Box 12643 Washington, D.C.
20555 Raleigh, N.C.
27605 t
- Mr. Glenn 0. Bright Daniel F. Read, President Atomic Safety and Licensing Board Panel CHANGE U.S. Nuclear Regulatory Comission - -
P.O. Box 524 Washington, D.C.
20555 Chapel Hill, N.C.
27514
- Dr. James H. Carpenter Daniel F. Read Atomic Safety and Licensing Board Panel 100-B Stinson St.
U.S. Nuclear Regulatory Comission Chapel Hill, N.C.
27514 Washington, D.C.
20555 Wells Eddleman Patricia T. Newman, Co-Coordinator Slater E.
Nevcan, Co-Coordinator l
325 E. Trinity Ave.
Durham, N.C.
27701 Citizens Against Nuclear Power -
2309 Weymouth Ct.
Raleigh, N.C.
27612 George Jackson, Secretary Environmental Law Project School of Law, 064-A Richard D. Wiison, M.D.
729 Hunter St.
University of. North Carolina Apex N.C.
27502 Chapel Hill, N.C.
27514 l
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John Runkle, Executive Coordinator Docketing and Service..Section Conservation Council of North Carolina OfficeoftheSecretirp 307 Granville Rd.
U.S. Nuclear, Regulatory Commissin Chapel Hill, NC 27514 Washington, D.C.
20555
- George F. Trowbridge, Esq.
Dr. Phyllis Lotchin Thomas A. Baxter, Esq.
108 Bridle Run John H. O'Neill, Jr., Esq.
Chapel Hill, North Carolina -27514 Shaw, Pittman, Potts & Trowbridge 1800 M Street, N.W.
Washington, D.C. 20036
- Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555,'
- Atomic Safety and Licensing Appeal Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555
&Wk Stuart A. Treby Assistant Chief Hea ng Cou.nsel 0
for NRC Staff I
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