ML20066J176

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Memorandum Supporting NRDC & Sierra Club 821112 Notice of Intent to Introduce Natl Security Info & Opposing Applicant 821112 Motion to Strike Portions of TB Cochran Testimony, Part V.Two Certificates of Svc Encl
ML20066J176
Person / Time
Site: Clinch River
Issue date: 11/15/1982
From: Greenberg E
GALLOWAY & GREENBERG, National Resources Defense Council, Sierra Club
To:
NRC COMMISSION (OCM)
References
NUDOCS 8211230462
Download: ML20066J176 (12)


Text

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v DOCKETED U3HRC November 15, 1982

'82 NOV 22 20:10 Before the UNITED STATES ,- ,re NUCLEARREGULATORYCOMMISSIONI;T';'f[._.f[~

Washington, D.C. 20555 "

Adminstrative Judges:

Marshall E. Miller, Chairman Gustave A. Linenberger, Jr.

Dr. Cadet H. Hand, Jr.

In the Matter of )

)

UNITED STATES DEPARTMENT OF ENERGY )

PROJECT MANAGEMENT CORPORATION )

TENNESSEE VALLEY AUTHORITY ) Docket No. 50-537

)

(Clinch River Breeder Reactor Plant) )

MEMORANDUM OF INTERVENORS, NATURAL RESOURCES DEFENSE COUNCIL, INC.,

AND THE SIERRA CLUB, IN SUPPORT OF NOTICE OF INTENT TO INTRODUCE NATIONAL SECURITY INFORMATION AND IN OPPOSITION TO APPLICANTS' MOTION TO STRIKE PORTIONS OF THE TESTIMONY OF DR. THOMAS B. COCHRAN (Part V)

Intervenors, Natural Resources Defense Council, Inc.,

and the Sierra Club, submit this Memorandum in order to respond briefly to Applicants' Response To Intervenors' Notice of Intent to Introduce National Security Information (the " Notice of Intent") and to Applicants' Motion to Strike Portions of the Testimony of Dr. Thomas B. Cochran (Part V) ( the " Motion to Strihe"), both filed November 12, 1982. As set forth below, Intervenors submit that National Security Information can and should be admitted in this proceeding and that the Motion to Strike should be denied.

8211230462 821115 PDR ADOCK 05000537 C PDR sso

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(1) With respect to the Notice of Intent, Applicants' basic argument is because such Notice involves references to, and critiques of, threat levels embodied in Commission regulations, Intervenors are some how attacking the regulations themselves. This is simply not the case.

Intervenors, consistent with their admitted Contentions 4 and 6 (b) (4) , are seeking to do no more than develop their case that Applicants and Staff have failed adequately to analyze safeguards risks and consequences. The issue presented is one of adequacy of analysis under the National Environmental Policy Act of 1969, 42 U.S.C. Section 4321 et seg. ("NEPA").

Whether there may be credible threats beyond the design basis set forth in the Commission's regulations is clearly relevant for that purpose. Moreover, in the case of unlicensed DOE facilities, where Staff relies on the " comparable i effectiveness" of DOE requirements for it3 safeguards judgments, see FSFES at E-3, for analytical purposes it is surely relevant if there are differences between NRC and DOE threat levels.

It is also clear, contrary to Applicants' suggestion, that the testimony offered by Intervenors involves much more l

than " remote" and " speculative" scenarios. It is not the i thrust of the testimony simply that certain scenarios would i

! "not violate physical laws", but rather that certain threats are credible, in the sense there being a need to consider the i

risks associated with such threats. Given the fact that the Department of Defense appears to recognize larger internal theft threats than those analyzed by Applicants and Staff 1/,

and similar conclusions are held by outside experts, see Cochran Testimony, Answer A.9(2), the testimony is obviously grounded in a realistic assessment of potential threats to the Clinch River Breeder Reactor (the "CRBR") and its supporting fuel cycle.

(2) With respect to the Motion to Strike, Applicants' objections fall into several categories, none of which has merit:

(a) Applicants object to Answer A.9 (3) , relating to the risks of hijacking of irradiated fuel, on the grounds that such actions would occur outside of the United States and, therefore, are beyond the scope of NEPA. However, the testimony, by its terms, is not limited to ocean transport to foreign countries; it is as readily directed to ocean transport in domestic commerce. Nor is it directed particularly to the regulations and requirements of other i countries -- the apparent basis for the Board's Protective i Order sf May 27. Rather, it can apply to U.S.-flag vessels l

operating under U.S. law. In any event, this kind of action, taking place on the high seas, and outside the territorial i

i jurirdiction of a foreign country, is one which would 1/ In explaining its internal threat statement, the Commission itself has noted, "DOD states that it recognizes l the possibility of collusion by two or more cleared I

insiders."

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generally seem to fall within the ambit of the NEPA. See Executive Order 12114, 44 Fed. Reg. 1957 (Jan. 9, 1979),

Secs.2-3(a), 2-4 (b) (ii) .

(b) Applicants object to several Answers (A.13, A.26 (3) , A.31(1)) on the grounds that this evidence represents an attack upon the Commission's regulations. For the reasons stated in Paragraph (1) above relating to the Notice of Intent, these objections are groundless.

(c) Applicants challenge a number of Answers (A.21, A.26 (1) and (2), A. 28, A.31 (2) and (3), and Paragraph 7.3.3.3 of Exhibit 1) on the grounds that this evidence concerns the adequacy of safeguards at various DOE, DOD and/or NRC -

licensed facilities and is beyond the scope of this proceeding. Applicants are doing no more than conducting a semantic exercise with their emphasis on the term " adequacy".

Safeguards risks and consequences at the CRBR and its supporting fuel cycle facilities are at issue in this l

proceeding. Dr. Cochran would readily substitute, for example, the phrase " safeguards risks and consequences" for i the phrase "the adequacy of safeguards" in line 3 of Answer 21, if that would satisfy Applicants. Similar amendations l

! could be made elsewhere. However, it seems to us that l Applicants are seeking to erect a wholly artificial distinction between " adequacy" and " costs". Whether or not i

! particular safeguards are adequate necessarily bears upon I

costs which might be incurred - either costs if safeguards should fail, or costs needed to upgrade safeguards to a

satisfactory level.

In point of fact, the notion that what goes on at other facilities is outside the scope of this proceeding is directly contrary to the Staff's own approach to its NEPA analysis. At the core of its analysis are comparative judgments with respect to safeguards risks and consequences for the CRBR and its supporting fuel cycle. 2/ Thus, in concluding that safeguards discussed in the FSFES are of

" proven workab'lity", the FSFES states, "Most of the safeguards measures proposed by DOE are similar to systems currently employed at other DOE nuclear facilities or at comparable NRC-licensed facilities." FSFES at 12-66.

Indeed, the " bottom line" conclusion of the Staff with respect to safeguards risks and consequences is that the risks associated with Clinch River "would not exceed" or are "no greater than" risks associated with other currently operating plants, and that conclusion is " based in large part on comparison with these other facilities." See FSFES at i

7-6, 12-34, 12-69, E-9. If Intervenors' evidence with respect to safeguards risks is excluded, Intervenors are i effectively precluded from challenging the Commission's analytical approach.

(d) Finally, Applicants question the relevance of Answer A.30, relating to impacts on non-proliferation.

2/ Even Applicants, it should be noted, are given to comparisons in this area. DOE Testimony at 76 (referring to effectiveness of military safeguards).

However, the Commission Staff itself has itself reached conclusions with respect to these impacts. FSFES at 12-38.

Thus, these impacts have plainly been put in issue in the proceeding and are an appropriate topic for Intervenor testimony.

WHEREFORE, Intervenors respectfully submit that their Notice of Intent is appropriate and that Applicants' Motion to Strike should be denied.

Respectfully submitted,

//l D';/b b C/V x-Eldon V.C. Greenberg GALLOWAY & GREENBERG 1725 Eye Street, N.W.

Suite 601 Washington, D.C. 20006 (202) 833-9084 Attorney for Intervenors Natural Resources Defense Council, Inc., and the Sierra Club Dated: November 15, 1982 Washington, D.C.

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CERTIFICATE OF SERVICE I hereby certify that the foregoing Memorandum of Intervenors, Natural Resources Defense Council, Inc., and the Sierra Club, in Support of Notice of Intent to Introduce National Security Information and in Opposition to Applicants' Motion to Strike Portions of the Testimony of Dr.

Thomas B. Cochran (Part V) was served on the 16th day of November, 1982, by hand-delivering in Oak Ridge, Tennessee, a copy of the same to:

Marshall E. Miller Chairman Atomic Safety & Licensing Board 4350 East West Highway, 4th Floor Bethesda, Maryland 20814 Gustave A. Linenberger Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commission 4350 East West Highway, 4th Floor Bethesda, Maryland 20814 Daniel Swanson, Esq.

Stuart Treby, Esq.

Bradley W. Jones, Esq.

Office of Executive Legal Director U.S. Nuclear Regulatory Commission Maryland National Bank Building 7735 Old Georgetown Road Bethesda, Maryland 20814 R. Tenney Johnson, Esq.

Leon Silverstrom, Esq.

Warren E. Bergholz, Jr., Esq.

Michael D. Oldak, Esq.

L. Dow Davis, Esq.

Office of General Counsel U.S. Department of Energy 1000 Independence Avenue, S.W., 6A245 Washington, D.C. 20585

- George L. Edgar, Esq.

Irvin N. Shapell, Esq.

Thomas A. Schoutz, Esq.

Gregg A. Day, Esq.

Frank K. Peterson, Esq.

Morgan, Lewis & Bockius 1800 M Street, N.W., 7th Floor Washington, D.C. 20036 Dr. Cadet H. Hand, Jr.,

Director Bodega Marine Laboratory University of California P.O. Box 247 Bodega Bay, CA 94923 Herbert S. Sanger, Jr., Esq.

Lewis E. Wallace, Esq.

James F. Burger, Esq.

W. Walker LaRoche, Esq.

Edward J. Vigluicci, Esq.

Office of the General Counsel Tennessee Valley Authority 400 Commerce Avenue Knoxville, TN 37902 William M. Leech, Jr., Esq.

Attorney General William B. Hubbard, Esq.

Chief Deputy Attorney General Michael D. Pearigen, Esq.

Office of the Attorney General 450 James Robertson Parkway Nashville, TN 37219 and by mailing a copy thereof, postage prepaid, on the 18th day of November, 1982, to:

Docketing & Service Section office of the Secretary U.S. Nuclear Regulatory Commission 1717 H Street, N.W., Room 1121 Washington, D.C. 20555 (3 copies)

Atomic Safety & Licensing Appeal Board U.S. Nuclear Regulatory Commission 1717 H Street, N.W., Room 1121 Washington, D.C. 20555 i

Lawson McGhee Public Library 500 West Church Street Knoxville, TN 37219 William E. Lantrip, Esq.

City Attorney Municipal Building P.O. Box 1 Oak Ridge, TN 37830 Oak Ridge Public Library Civic Center Oak Ridge, TN 37820 Commissioner James Cotham Tennessee Department of Economic and Community Development Andrew Jackson Building, Suite 1007 Nashville, TN 3)219 Eldon V.C. Greenberg Dated: November 18, 1982 Washington, D.C.

l CERTIFICATE OF SERVICE I hereby certify that the foregoing Memorandum of Intervenors, Natural Resources Defense Council, Inc., and the Sierra Club, in Support of Notice of Intent to Introduce National Security Information and in Opposition to Applicants' Motion to Strike Portions of the Testimony of Dr.

Thomas B. Cochran (Part V) was served on the 16th day of j November, 1982, by hand-delivering in Oak Ridge, Tennessee, a copy of the same to:

, Marshall E. Miller Chairman Atomic Safety & Licensing Board 4350 East West Highway, 4th Floor Bethesda, Maryland 20814 Gustave A. Linenberger i Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commission 4350 East West Highway, 4th Floor Bethesda, Maryland 20814

' Daniel Swanson, Esq.

Stuart Treby, Esq.

Bradley W. Jones, Esq.

Office of Executive Legal Director U.S. Nuclear Regulatory Commission

Maryland National Bank Building 7735 Old Georgetown Road Bethesda, Maryland 20814 f

R. Tenney Johnson, Esq.

Leon Silverstrom, Esq.
  • Warren E. Bergholz, Jr., Esq.

Michael D. Oldak, Esq.

, L. Dow Davis, Esq.

Office of General Counsel U.S. Department of Energy i 1000 Independence Avenue, S.W., 6A245 Washington, D.C. 20585 t

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- , _ . _ . . , . - . _ _ - _ , . . ~ , . . _ _ _ _ . , , , . . - _ _ . . , _ , _ . -

George L. Edgar, Esq.

Irvin N. Shapell, Esq.

Thomas A. Schmutz, Esq.

Gregg A. Day, Esq.

Frank K. Peterson, Esq.

Morgan, Lewis & Bockius 1800 M Street, N.W., 7th Floor Washington, D.C. 20036 Dr. Cadet H. Hand, Jr.,

Director Bodega Marine Laboratory University of California P.O. Box 247 Bodega Bay, CA 94923 Herbert S. Sanger, Jr., Esq. ,

Lewis E. Wallace, Esq.

James F. Burger, Esq.

W. Walker LaRoche, Esq.

Edward J. Vigluicci, Esq.

Office of the General Counsel i Tennessee Valley Authority 400 Commerce Avenue Knoxville, TN 37902 William M. Leech, Jr., Esq.

Attorney General William B. Hubbard, Esq.

Chief Deputy Attorney General Michael D. Pearigen, Esq.

Office of the Attorney General

! 450 James Robertson Parkway Nashville, TN 37219 and by mailing a copy thereof, postage prepaid, on the 18th day of November, 1982, to:

i Docketing & Service Section Office of the Secretary U.S. Nuclear Regulatory Commission j 1717 H Street, N.W., Room 1121 Washington, D.C. 20555 (3 copies)

Atomic Safety & Licensing Appeal Board U.S. Nuclear Regulatory Commission 1717 H Street, N.W., Room 1121 l Washington, D.C. 20555 l

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Lawson McGhee Public Library 500 West Church Street Knoxville, TN 37219 William E. Lantrip, Esq.

City Attorney Municipal Building P.O. Box 1 i Oak Ridge, TN 37030 Oak Ridge Public Library Civic Center Oak Ridge, TN 37820 Commissioner James Cotham Tennessee Department of Economic and Community Development Andrew Jackson Building, Suite 1007 Nashville, TN 32219 Eldon V.C. Greenberg Dated: November 18, 1982 Washington, D.C.