ML20057B040

NRC Staff Reply to PG&E Response to Staff Motion to Amend Protective Order.* NRC Staff Moves Board to Adopt Language Requested in 930817 Motion as Stated.W/Certificate of Svc

ML20057B040
Person / Time
Site:	Diablo Canyon
Issue date:	09/14/1993
From:	Hodgdon A, Jorgensen A NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Atomic Safety and Licensing Board Panel
References
CON-#393-14300 OLA-2, NUDOCS 9309170093
Download: ML20057B040 (6)

Text

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a September 14, 1993  ;

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 93 cr 15 lm '.46 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD >

In the Matter of )

) Docket Nos. 275 OLA-2 ,

PACIFIC GAS & ELECTRIC CO. ) . 50-323 OLA-2 j

)

(Diablo Canyon Nuclear Power Plant, ) (Construction Period Recovery)

Units 1 & 2) ) ,

NRC STAFF REPLY TO PG&E'S RESPONSE TO STAFF'S MOTION TO AMEND PROTECTIVE ORDER INTRODUCTION On August 17,1993, the NRC Staff filed a " Motion to Amend Protective Order,"  ;

i by which it sought to amend the protective order that governs the disclosure and use of l

excerpts from a report prepared by the Institute of Nuclear Power Operations (INPO) j titled, " Evaluation of Diablo Canyon Power Plant," dated July 1990 (INPO Report, hereafter). The INPO Report is a confidential document, accorded restricted distribution

, by INPO and Pacific Gas and Electric Company (PG&E). Under this Protective Order,'

the INPO Report was made available to persons designated by San Luis Obispo Mothers for Peace (SLOMFP), Intervenor herein, and persons designated by the NRC Staff. In the Motion to Amend, the Staff sought clarification that the Order does not generally place any limitation on the Staff examining the INPO Repoit or any person from bringing i " Memorandum and Order (Protective Order Governing Non-Disclosure ofINPO Report) " dated August 3,1993; see also " Memorandum and Order (Granting Discovery Request / Referring Ruling to Commission)," LBP-93-13, July 19,1993.

l' 9309170093 930914 PDR C

ADOCK 05000275 PDR , }Sy O o

i a safety problem to the attention of cognizant NRC officials. On August 30, 1993, PG&E filed a response to the Staffs Motion to Amend in which it suggested the addition of certain language. For the reasons discussed, the Staff objects to adding this language  ;

and urges the Licensing Board to amend the Pmtective Order as detailed below.

BACKGROUND In accordance with paragraph No. 3 of the Memorandum and Order (Protective Order Governing Non Disclosure ofINPO Report), dated August 3,1993, disclosure of information in the INPO report, " Evaluation of Diablo Canyon Power Plant," dated July j 1990, is limited to specifically identified individuals and "no disclosure shall be made  ;

other than for purposes directly related to the hearing to be held in conjunction with this proceeding " l In its Motion to Amend, the NRC Staff argued that the foregoing language might suggest an unintended limitation which might prevent NRC Staff members identified in L

the Order from bringing to the attention of other appropriate NRC officials information that raised an important safety concern that might be disclosed in those reports.

l As noted above, on August 30, 1993, Pacific Gas and Electric Company responded to the NRC Staff's Motion to Amend the Protective Order. PG&E did not  !

oppose the NRC Staffs Motion, but their position was premised on the assumption that the Memorandum of Agreement between INPO and the NRC applies to any disclosure ,

of information to the NRC Executive Director for Operations, the NRC Director of the Office of Investigations, or the NRC Inspector General. PG&E suggested that the subject footnote should be revised by appending a sentence at the end as follows: ,

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9 Such officials are subject to the Memorandum of Agreement between NRC and INPO dated October 21, 1991, and will treat any confidential information in accordance with its provisions.

I DJSCUSSION i The NRC Staff does not agree with the addition of PG&E's suggested language. j The' Licensee's response to the NRC Staffs Motion is stated to be " premised on the t

assumption that the Memorandum of Agreement applies to any disclosure ofinformation i

to the NRC Executive Director for Operations, the NRC Director of the Office of l 1

Investigations, or the NRC Inspector General." The intent of this statement is unclear.

However, the Staff emphasizes that the Memorandum of Agreement is applicable to information provided to the NRC Staff under the Memorandum. The language requested i

by the NRC Staff in its Motion to Amend the Protective Order merely clarifies the [

NRC's responsibilities under the August 3,1993, Protective Order. The Memorandum I

provides that the NRC will control distribution of INPO proprietary information, consistent with the law. from unauthorized disclosure. The NRC believes that there is no intent in the Memorandum to restrict NRC disclosures authorized by law. Moreover, the Memorandum provides that the NRC may depart from its terms whenever "it deems i

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it necessary or appropriate to do so in the discharge of its regulatory responsibilities. . ."  !

l Thus, the Memorandum is consistent with the Protective Order but neither controls the j i

other. Both are governed by the Staff's overriding duty to disclose important health and safety information.

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w MOTION Wherefore, the NRC Staff respectfully moves the Board to adopt the language that the Staff requested in its August 17,1993, Motion to Amend Protective Order as follows:

This Order shall not be interpreted as preventing the persons authorized to review' protected documents from disclosing information obtained therefrom to the NRC Executive Director for Operations, the NRC Director of the Office of Investigations, or the NRC Inspector General, but l such persons disclosine such information shall inform such official that ,

the information was obtained from documents covered by this protective order.'

Respectfully submitted, 5t A 2 . N e> d d W L-Ann P. Hodgdon D Counsel for NRC Staff ,

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a Arl e A. Jorgensen Counsel for NRC Staff Dated at Rockville, Maryland this 14th day of September 1993 f

I 2 In reviewing this matter, it came to the Staff's attention that there were typographical errors in the version of the proposed footnote included in the Staff's motion of August 17th. Those errors are here corrected, as indicated by bold and underlining.

8 If the Board wished, the amended Order could also require that the Board be informed promptly of such disclosure.

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i l'  :(( f ' f UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION , ,, ,, j 93 M g./ 11,s -h ,j

{

EEFORE THE ATOMIC SAFETY AND LICENSING BOARD

~i

+

In the Matter of ) l

)  !

PACIFIC GAS & ELECTRIC COMPANY ) Docket Nos. 50-275 OLA-2 l

) 50-323 OLA-2 i

) i (Diablo Canyon Nuclear Power Plant, ) (Constructed Period Recovery)  !

Units 1 and 2) )  ;

CERTIFICATE OF SERVICE  !

I hereby ' certify that copies of "NRC STAFF REPLY TO PG&E'S RESPONSE TO -

STAFF'S MOTION TO AMEND PROTECTIVE ORDER" in the above captioned ,

1 proceeding have been served on the following by deposit in the United States mail first class or, as indicated by an asterisk, by deposit in the Nuclear Regulatory Commission's internal mail system, this 14th day of September 1993:  !

I Charles Bechhoefer* Office of Commission Appellate j Administrative Judge Adjudication

• l Atomic Safety and Licensing Board Mail Stop: 16-G-15 OWFN <

Mail Stop:- EW-439 U.S. Nuclear Regulatory Commission. l U.S. Nuclear Regulatory Commission -Washington, DC 20555 l Washington, DC 20555 Adjudicatory File * (2) l Jerry R. Kline* Atomic Safety and Licensing Board l Administrative Judge Panel ,

Atomic Safety and Licensing Board Mail Stop: EW-439 l Mail Stop: EW-439 U.S. Nuclear Regulatory Commission l U.S. Nuclear Regulatory Commission Washington, DC 20555 ~

Washington, DC 20555 Atomic Safety and Licensing Board Frederick J. Shon* Panel *  :

Administrative Judge Mail Stop: EW-439 i Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission  !

Mail Stop: EW-439 Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555

2 Nancy Culver, President Office of the Secretary * (2)

San Luis Obispo Mothers for Peace Attn: Docketing and Service P.O. Box 164 Mail Stop: 16-G-15 OWFN Pismo Beach, CA 93448 U.S. Nuclear Regulatory Commission Washington, DC 20555 Christopher J. Warner Richard F. Locke Joseph B. Knotts, Jr., Esq.

Pacific Gas & Electric Co. David A. Repka, Esq.

77 Beale Street Kathryn M. Kalowsky, Esq.

San Francisco, CA 94106 Winston & Strawn 1400 L Street, N.W.

Greg Minor Washington, DC 20005-3502 MHB Technical Assoc.

1723 Hamilton Avenue, Suite K Truman Burns San Jose, CA 95125 Robert Kinosian California Public Utilities Commission Diane Curran 505 Van Ness, Room 4103 IEER San Francisco, CA 94102 6935 Laurel Avenue, Suite 204 Takoma Park, MD 20912 Ann P. Hodgdon (A A _

oc ebC

/d Counsel for NRC Staff l

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