ML20071P194

Reply to Intervenor 821015 Response to ASLB 820922 Questions Re Qualified Security Expert.Intervenors Failed to Carry Burden of Demonstrating Relevant Expertise of Any Identified Persons.Certificate of Svc Encl

ML20071P194
Person / Time
Site:	Harris
Issue date:	10/28/1982
From:	Baxter T CAROLINA POWER & LIGHT CO., SHAW, PITTMAN, POTTS & TROWBRIDGE
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-OL, NUDOCS 8211020382
Download: ML20071P194 (9)

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v October 28, 1982 D0tKETED USWC

'82 ND'l -1 A11 :05 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION _ - ,

BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

, CAROLINA POWER & LIGHT COMPANY ) Docket Nos. 50-400 OL AND NORTH CAROLINA EASTERN ) 50-401 OL MUNICIPAL POWER AGENCY )

)

(Shearon Harris Nuclear Power )

Plant, Units 1 and 2) )

APPLICANTS' REPLY TO INTERVENORS' RESPONSE TO THE BOARD'S QUESTION ON A QUALIFIED SECURITY EXPERT Intervenors Kudzu, CCNC, CHANGE and Eddleman (hereinafter "the Intervenors") each have proposed contentions on the physical security plan for the Shearon Harris plant. In its Memorandum and Order (Reflecting Decisions Made Following Prehearing Conference),

September 22, 1982, the Board stated that "[c]ontentions about the security plan raise some threshold procedural issues that should be first addressed and resolved." Memorandum and Order at 16. The Board directed the Intervenors to serve by October 15, 1982, answers to the following questions posed by the Board:

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.

2. If you have no expert at this time, when and how do you plan to obtain one?

3. Would a protective order substantially similar to the order entered in the Diablo Canyon case be acceptable to you? If not, why not?

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2-Id. at 16-17. The Board afforded Applicants and the Staff the opportunity to present any objections they may have to any experts within ten days following receipt of an Intervenor's statement of an expert's qualifications.-1/ Id,. at 17.

Applicants Carolina Power & Light Company and North Carolina Eastern Municipal Power Agency herein submit their reply to the Intervenors' " Response to Questions," dated October 15, 1982. It is Applicants' position that the Intervenors have not adequately demonstrated,in their Response, the relevant expertise of the persons identified.

The process undertaken by this Board to consider the potential adjudication of contested physical security plan issues reflects its recognition that a security plan for a nuclear facility is highly sensitive, confidential information as to which Commission regulations demand protection from disclosure. 10 C.F.R. SS 2.790, 73.21. While alleged inadequacies in a security plan may be cognizable contentions in a licensing proceeding, disclosure of the plan is permissible only to the extent deemed necessary by the presiding officer to a proper decision in the proceeding and only if made subject to carefully fashioned protective measures. 10 C.F.R. S 2.744. See Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-410, 5 N.R.C. 13;J (1977).

1/ As the Board noted, we need not reach the question of any objections to the Intervenors' security plan contentions, as advanced now or possibly to be developed later, unless and until the Intervenors have obtained the services of a qualified security expert acceptable to the Board. Memorandum and Order at 17.

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' yf In ALAB-410, supra, the Appeal Board established guidelines, which have been endorsed by the Commission,-2/ which prescribe the conditions under which and the extent to which a security plan may be disclosed. Among the principles established is that:

... A security plan need not be revealed to a witness who lacks relevant expertise for evaluat-ing it. Access to the plan or portions thereof should be given only to witnesses who have been shown to possess the technical competence necessary to evaluate the portions of the plan which they may be shown. Any other course would contravene the requirement that access be afforded only to

" persons properly and directly concerned" (10 CFR S 2.790 (b) (6)) . See also Federal Rules of Evidence, Rule 702.

In the latter connection, it is noteworthy that, when an expert is challenged (as on voir dire examination), the party sponsoring the witness has the burden of demonstrating his expertise. As Wigmore has pointed out, it is " universally conceded" that the " possession of the recuired qualifications by a particular person offered as a witness, must be expressly shown by the party offering him." 2 Wigmore, Evidence, S 560, at pp. 640-41 (3d Ed. 1940) (emphasis in original).

ALAB-410, supra,.5'N.R.C. at 1404-05 (footnote omitted). Thus, only l those portions of a plan which relate to the expert's area of expertise i

need be shown that expert and, if a proposed expert's qualifications are challenged, the intervenor must prove that the expert is qualified to evaluate each section of the plan which is to be reviewed by him or her. Id. at 1406.

Intervenors' Response to Questions does not contain sufficient information to demonstrate the qualifications of the three subject individuals under the tests laid down by the Appeal Board and the 1

i 2/ Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units Nos. 1 and 2), CLI-80-24, 11 N.R.C. 775, 777 (1980).

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Commission. Consistent with the public interest considerations involved in determining potentially to disclose portions of a physical security plan for a nuclear power plant to one or more intervenor advisors, the Board must have sufficient information before it to assure itself that each such individual has the technical competence to review one or more portions of the plan.

While the information provided here by the Intervenors has the superficial gloss of relevance to security plan issues, a close reading reveals that little substantive information has been provided which would serve to demonstrate the relevant technical qualifications.

Applicants submit that a very detailed and specific description of a proposed expert's experience is required in order for the Board to determine that a demonstration of relevant technical competence has been made. Military experience as a bomb technician (Mr. Maples) , with nuclear weapons maintenance and storage facilities (Mr. Beckwith and Mr. Maples), or with top secret and classified Navy materials (Mr. Sanders) is not necessarily relevant (and more than likely is not relevant) to the provision of physical security at a civilian nuclear power plant where the contemplated threats,-3/

surveillance devices, warning systems, communications systems and types of personnel all may be different. If an argument exists 3/ See. e.g., 10 C.F.R. S 50.13 (...not required to provide for Hesign features or other measures for the specific purpose of protection against the effects of (a) attacks and destructive acts, j including sabotage, directed against the facility by an enemy of the United States, whether a foreign government or other person, or (b) use or deployment of weapons incident to U.S. defense activities.

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i that there is a meaningful analogy which establishes the relevance of this experience, Intervenors neither have set it forth nor adequately described the experience.

It is not sufficient here to set forth the experience of a person's employer. The " corporate experience" of Security Assistance Services tells us nothing about the personal experience of Mr. Beckwith. The same may be said for the description of the

" firm" experience of Special Security International (Mr. Maples) and of Hawkeye Security (Mr. Sanders) .-4/ The question here is potential access by these individuals, not their employers, to all or portions of the Shearon Harris security plan.

The Intervenors have not demonstrated that any of the subject persons has first-hand, personal experience in the preparation of a physical security plan for a civilian nuclear power plant, or in performing a vulnerability analysis for such a facility.-5/ In this regard, another licensing board made the following observations on the application of the guidance set forth in ALAB-410,' supra:

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l The key words here are " technical competence" and "the party sponsoring the witness has the l burden of demonstrating his expertise." Webster l

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! 4/ Note in particular that there is no assertion that Mr. Maples himself worked with Virginia Electric Power Company,.or even that his firm's work was on security plans for. VEPCO's nuclear power stations.

5/ In the case of Mr. Sanders, it is asserted that he spent eight years as " Security Supervisor" for Iowa Electric & Power. Company and that he received training in nuclear security. The title itself does not tell us that Mr. Sanders had anything to do with a nuclear power plant (utilities have security in their offices and many other types of facilities). The term " training in nuclear security" likewise does not convey a meaningful understanding of his knowledge or begin to address the subject of practical experience.

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defines " technical" as "having special, usually practical knowledge, especially of a mechanical or scientific subject." We believe that " technical competence" to evaluate the components of a security plan ideally requires practical knowledge flowing from working with the assembly of the " nuts and bolts," etc., of the various components of the security system, at least to the extent of being able to design an overall system. It does not necessarily mean the raw manual labor involved, but an intimate, on-the-spot knowledge of the fabrication and assembly of each component. We recognize that the Board must make a subjective determination here, but, noting the fact that the burden is on the party sponsoring the candidate, we believe that the burden will not have been met unless there exists evidence of actual practical knowledge or its equivalent.

Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), LBP-78-36, 8 N.R.C. 567, 569 (1978), petition for directed certification denied, ALAB-514, 8 N.R.C. 697 (1978), review declined as moot, CLI-79-1, 9 N.R.C. 1 (1979). The Intervenors have not demonstrated, with the scant information provided in their Response to Questions, that any of the three persons identified has the requisite and relevant practical knowledge of physical security at a nuclear power plant.

e' For all of the foregoing reasons, Applicants submit that the Intervenors have failed to carry their burden of demonstrating the relevant expertise of any of the three identified persons.

Respectfully submitted, i w George F. Trowbridge, P.C.

Thomas A. Baxter, P.C.

John H. O'Neill, Jr.

SHAW, PITTMAN, POTTS & TROWBRIDGE 1800 M Street, N.W.

Washington, D.C. 20036 (202) 822-1000 Richard E. Jones Samantha Francis Flynn CAROLINA POWER & LIGHT COMPANY P.O. Box 1551 Raleigh, North Carolina 27602 (919) 836-7707 Counsel for Applicants Dated: October 28, 1982 i

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UNITED STATES OF AMERICA ,

NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

CAROLINA POWER & LIGHT COMPANY ) Docket Nos. 50-400 OL AND NORTH CAROLINA EASTERN ) 50-401 OL MUNICIPAL POWER AGENCY )

)

(Shearon Harris Nuclear Power )

Plant, Units 1 and 2) )

CERTIFICATE OF SERVICE I hereby certify that copies of " Applicants' Reply To Intervenors' Response To The Board's Question On A Qualified Security Expert" were served this 28th day of October, 1982, by deposit in the U.S. mail, first class, postage prepaid upon Deborah Greenblatt, Esquire, 1634 Crest Road, Raleigh, North Carolina 27606 and the parties on the attached Service List.

Thomas A. Baxter, P.C.

Dated: October 28, 1982

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• UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION I

BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

CAROLINA POWER & LIGHT COMPANY ) Docket Nos. 50-400 OL AND NORTH CAROLINA EASTERN ) 50-401 OL MUNICIPAL POWER AGENCY )

)

(Shearon Harris Nuclear Power )

Plant, Units 1 and 2) )

SERVICE LIST James L. Kelley, Esquire John D. Runkle, Esquire Atmic Safety and Licensing Board Conservation Council of North Carolina U.S. Nuclear Regulatory Cn=ission 307 Granville Road Washington, D.C. 20555 Chapel Hill, North Carolina 27514 Mr. Glenn O. Bright M. Travis Payne, Esquire Atcmic Safety and Licensing Board Edelstein and Payne U.S. Nuclear Regulatory Ccmnission P.O. Box 12643 Washington, D.C. 20555 Raleigh, North Carolina 27605 Dr. Janes H. Carpenter Dr. Richard D. Wilson Atcrnic Safety and Licensing Board 729 Hunter Street U.S. Nuclear Regulatory rhmiasion Apex, Ncrth Carolina 27502 Washington, D.C. 20555 Mr. Wells Eddleman l Charles A. Barth, Esquire 718-A Iredell Street Myron Karman, Esquire Durhan, North Carolina 27705 Office of Executive Iegal Direc'wr U.S. Nuclear Regulatory Ccmnission Ms. Patricia T. Newman Washington, D.C. 20555 Mr. Slater E. Newman Citizens Against Nuclear Power Docketing and Service Section 2309 Weymouth Court Office of the Secretary Raleigh, North Carolina 27612 U.S. Nuclear Regulatory Ccmnissio.

Washington, D.C. 20555 Richard E. Jones, r@e Vice President & Senior Cbunsel Mr. Daniel F. Read, President Carolina Power & Light Ctspany Chapel Hill Anti-Nuclear Group Effort P.O. Box 1551 P.O. Box 524 Raleigh, North Carolina 27602 Chapel Hill, North Carolina 27514 i