ML20071Q697

Reply Brief Re Qualification of Intervenor Security Experts. Plan Review Restrictions Will Not Expedite Matters.Board Requested to Permit Listed Experts to Review Relevant Portions of Plan.Certificate of Svc Encl

ML20071Q697
Person / Time
Site:	Harris
Issue date:	06/06/1983
From:	Greenblatt D AFFILIATION NOT ASSIGNED, GREENBLATT, D.
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-OL, NUDOCS 8306090225
Download: ML20071Q697 (14)

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2 UNITED STATES OF AMERICA  : 'I'O NUCLEAR REGULATORY COMMISSION .

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Sy C 9 v? s BEFORE THE ATOMIC SAFETY AND LICENSING BOARD '

b-md O Glenn O. BriEht .

Dr. James H. Carpenter James L. Kelley, Chairman

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In the Matter of Dockets 50 400 OL CAROLINA POWER AND LIGHT CO. et al. ) 50 401 OL I (Shearon Harris Nuclear Power Plant, )

Units 1 and 2) )

) June 6, 1983 i

INTERVENORS8 ' REPLY BRIEF ON QUALIFICATIONS OF l SECURITY EXPERTS On March 21, 1983, Intervenors served Applicants and Staff

_with copies of resumes and other information pertaining to their proffer of, experts to review the SHNPP security plan; .

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supplemental information was provided on April 14, 1983. Pur-( suant to a Notice of Deposition ani by agreement, deposition of the proffered experts took place at Fayetteville and Raleigh, .

North Carolina, on April 18 and 25, 1983,,respectively. Appli-cants and Staff dgposed Ernest Tabata, William A. Brady, III, Charles,D. Crockett, and Bobby Tuggle in Fayetteville, and John Maples, James Mackie, Earl Boy Bleacher, and Lowell Stevens  ;

were deposed in Raleigh. On May 17, 1993, Applicants served 4 om oOS their "B:lef ( As to Qualifications of Persons Proffered by l 88 Intervenors as Experts. ..") (hereaf ter " Applicants' Brief" or gg O

Ng "A.B."), in which they ask*the Board'to rule that none.of the gg .

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g proffered . experts qualify to review the SHNPP security plan.

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@g Also on-May 17, 1983, the hTC Staff submitted its "Brief on ma.cs Bro 3

Paga 2 Qualifications of Witnesses Proffered as Expert in Security Planning..." (hereaf ter " Staff Brief" or "S.B."), which recom-mended that four of the proffered experts were qualified to review the plan in part and should have relevant portions made available to them. Intervenors request not only that the Board accept the Staff's recommendations but that it go be-yond them and qualify the witnesses as experts as outlined below.

LEGAL REQUIREMENTS t

Security plans for nuclear power plants present a unique set of legal and practical problems; Diablo Canyon 1 is the only reported case t'o address them at length specifically, ALAB 410 set out the general requirements: (1) of relevancy of the re-qnested portions of the plan to contentions, (2) that proper protective measures be taken, and (3) that the requisite' expert-ise on the part of intervenors' witnesses be dhmonstrated, 5

.N.R.C. at 1404 6. The third Itapdrement is at issue here.

Unfortunately,: exactly what is an expert'is a difficult squestion: as the Appeal Board itself noted, the exact parameters of ALAB 410 are subject to disagreement and it may be in need of some " refinement."2 Applicants propose a "high standard" which includes in addition to the above factors a requirement that the proffered expert also possess knowledge of reactor plant systems E

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1. Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-410, 5.N.R.C. 1398 (1977). - -

2. Pacific Gas 5 Electric Co. (Diablo Canyon Nuclear Power Plants, Units 1 and 2), ALAB-580, 11 N.RC. 227, 231 (1980).

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Page 3 and layouts, based on a phrase in the ASLB's subsequent deci-sion in Diablo Canvod, A.B. at 10-11. The Board there wrote that such knowledge is "a necessary, but not suffic.ient condi-tion to qualify;" 8 N.R.C. at 573. Leaving aside the binding effect (or lack thereof) of that stare decisis on the decision . . , .

of, this Board, the cited language* apparently poses more of a i

desideratum than an absolute necessity. Security systems at a commercial nuclear plant.may vary in site-specific aspects from those used a.t 6ther sensitive installations, but the cri- ,

l tical factor in determining the expert's qualification must necessarily be his/her competence with respect to the system (s)

"an overau itself. Presumably, the ability to design / systemT"if demon-strated, includes the ability to take these additional site-specific factors into account. The Diablo Canyon ASLB's ex-plication of technical competence, 8 N.R.C. at 569, does not.

mention technical understanding of nuclear steam systems

operations or layouts, but concentrates on the "various.com-i' ponents of the security system," Id.--and the Board qualified its requirements with the word " Ideally," H. Experts' exper-ience, wrote the Ecard,.must.go to the implementation of the

" philosophy" of 10 C.F.R. Part 73, H. at 572, which concen-trates exclusively on security measures, not pla,nt layout.

As pointed out by the Staff, S.B. at 9-10, ALAB 410-offers ,

further protection against unnecessary disclosure by allowing

3. Bacific Gas & Electric C'o. (Diablo Canyon Nuclear Power Plant

d. Units See 10 1 and C.F.R. 2), 73.1 LBP-78-36, (purpose), 8 N.R.C.

73.2,0567 (1978).perfordince

,(g,eneral objectives). Note also that plant operations are not ampng the many items of ~mcwledge listed in Appendix B to Part 73, for security personnel,- although systems knowledge,is required.

3A. See 8 N.B.C. at 569. - -

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sanitization" of the plan into discrete components for review by each expert with relation only to'his/her area of competence.

ALAB 410 does not discuss the general qualifications of experts 5 but instead relies'en Rule'702 of the Federal Rules of Evidence and on Wigmore. Rula 702 tersely require.s only qualification by " knowledge, skill, training, o'r education;"

the comments do not elucidate, other than to state that "(t]he rule is broadly phrased,.6 suggesting that a l'iberal approach

-is to be taken in qualifying experts. Wigmore offers no more concrete guidelines;7 k;he only case cited in ALAB 410,0 Smibh

v. Hobart Manufacturinst Co. ,185 F.Supp. 751 (E.D.Pa.1960) stands for little more than the proposition that an expert may u.rtceWewed not be qualified as such solely on his own/ assertions', 185 F.

Supp. al 756. The court there defined an expert along the same

" general principles" 'ontlined in ALAB 410,9 with the negative limitation that he/she "need not be infallible or possess the htsnest degree of skill," Id. at 754. The rejection. of Mrw comey by the Diablo Canyon Boshi came as a result of intervenors' failure to satisfy even these minimum evidentiary requirements:

(1) no mention'was made of Comey's major in college, 8 N.B.C.

571, 'or (2) any , relation- of his course ' work to nuclear plant

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security, Id'., (3) his actual work on security systems was lim-ited to high-level policy reconimeridations, Id. at 572, and (4)

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no connection was made between his ACHS testimony and plant security at Diablo Canyon, Id. at 573. The general' qual,1 fica-

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5. see TN.a.C. at 1404-5, 1406.- '

6. Advisory Committee's Note, f.R.Ev, 702 .

7. See 2 Wimore on Evidence f560-1 (Bev. Ed.1979).

8. See 5 N.R.C. 1405 n. 17. .

9. See 5 N.B.C.1405 (fourth' papragraph i' rom top).

eI Page 5 tions of Mr. Comey stand in sharp ' contrast to the experience and training of Intervenors' proffered experts, all of whom have extensive experience in actually protecting sensitive installa-tions and in security systems.1 Applicants'. 'high ~ standard"

might apply to a "well-informed , layman" like Mr. Comey,.but the more liberal approach suggested by traditional rules of evid-ence ought to apply to experienced practitioners such as Inter-

_ venors have proffered. -

Considerations of public policy also support a more~1iberal approach, as the Additional Comments of Mr. Salzman in ALAB-410 indicate: he reviewed Commission practice and concluded that " considerable benefit can be derived from the independent scrutiny of security plans " 5 N.B.C. at 1410, and that the

_ likelihood of industrial sabotage was not likely to increase as a result of such scrutiny, Id - at 1411. The strong .public pol-icy of allowing public participation in licensing'he'arings, em-bod,ied in Sec. tion 189 of the Atomic Energy.Act and unchanged by Congress despite persistent pressure, further supports this p.osition. Therefore the Intervenors urge the Board to ' reject the Applicants' arguments and qualify the exper.ts as requested i below. .

EOPEY TUGGLE , , ,

Applicants admit that Mr. Tuggle is "relatively well edu-

,.cated and experienced in the fAeld of connunications,P A.B. at

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10. As Dr. Quarles and Dr. Johnson pointed out in their Additional Comments to ALAB 410, the fact that.Mr. Comey was-rejected in LBP-78-36 after previously,being allowed to review plant security plans is not relevant here, since that review was conducted prior to Diablo Canyon and prior to the imposition of dMailr4LS@grgrdristrrar.ydtrerarirrouC4N N e

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Paga 6 23, but contest his qualification basically on the grounds that he has no actual knowledge of nuclear plant operations and layout, Id. The Staff indicates no objection to Mr. Tuggle t s qualification, S.'B. at 3, despite the " intrinsic appeal," S.B.

at 9, .of Applicants' argument. As discussed above,11 Inter-venors believe that the language Applicants rely on expresses

- a desideratum, not a necessity; Intervenors believe that Mr.

Tuggle is more than adequately qualified to review the communi-cations portion of the plan and apply his expertise to it, and that he should be. allowed to do so. .

JOHN R. MAPLES Applicants contend that Mr. Maples is not qualifie'd " sus an

- expert, A.B. at 11-17, while the Staff stipulates that Maples

- ha.s sufficient qualific'ations to review guard training, intruder detection systems, and guards' recordkeeping, S.B. at 3 4. 'These

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are the areas in which Mr. Maples himself declared he felt qualified to review the SHNPP plan, Maples deposition (here-af ter "M.") at 68.

Applicants challenge Mr. Maples expertise on surveill'ance systems because he said he was not at one time an expert in closed circuit TV (CCTV), A.B. at 13, M. at 20. Yet after -that time he did supervise feasibility studies of a new security plan

_for a sensitive nuclear weapons.' installation which included CCTV, M.. at 25,18, see also M. at 50-1. Mr. Maples had super-visory and inspection duties for a hizeable force manning num-

11. See page 3, supra. - -

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i Paga 7 erous types of detection systems, including CCTV and ground

' sensors, M. at.18, 23, 34-5 It appears that he has'since dev-eloped the requisite knowledge to evaluate the SHHPP systems.

Applicants attack Mr. Maples' expertise in records re-v,iew; again, he had extensive daily supervisory experience at a nuclear weapons facility, M. at 34-5, with concomitant

- similar record keeping requirements. He ,also was responsible for inspecting records and administering records on a daily basis, Exh. 2. Applicants apparently began to challenge this showing of experience, M. at 77, but stopped after.two quest-ions, for reasons unknown to Intervenors.

Applicants also attack Mr. Maples' qualifications to re-view guard training portions.of the. plan,.because his'activi-ties at his military post in Europe and at Surry were' limited s

to. supervision and compliance inspection,.A.B. at 15 6. .Three e

years of such supervision--including feasibility studi' 's, M. at p4--and inspection activities which have continued since Mr.

s Maples le,f t the Army hardly to seem to be " limited experien'ce" which would make..him only a "well-informed layman." Obviously,

, not all _the many and overlapping factors listed in Part 73,-

Appendix B, which Applicants cite as the standard, will. apply to,each facet of the SENPP plan. It is difficult to imagine ~

even the best qualified expert having letter-perfect famil-iarity with this regulatory terminology, which Applicants seem to expec.t.12 What Mr. . Maples has demonstrated, and what'is cru-12 It should be borne in mind here that Mr. Maples, like the other proffered experts, is app, earing in his first NRC proceeding. He is a practitioner, not a lawyer, so a certain degree of unfamiliarity with legal and regulatory terms of art must necessarily be expected.

Pags 8 cial here, is extensive experience in security testing and

- in checking guard' training and readiness--exactly .the sort of expertise needed to review and evaluate the'SHNPP security plan. .

Therefore the Applican'ts' a,rguments should be 'rejec'ted, and Mr. Maples should iter qualified as an expert in the areas of detection systems, recordkeeping, and guad training. 'Iriter-venors ask the Board to so rule.

_LOWELL STEVENS , .

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Mr. Stevens' qualifications are attacked rathe'r generally

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! ty Applicants, A.B. at 21-3, while the Staff' believes that he is qualified to review the guard t' raining aspec'ts o'r the SHNPP plan, S B. at 8. Mr.. Stevens claimed himself that' h'is area of

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expertise was in "the training of--the' guards, operating with the human factor," Stevens deposition -(hereaf ter "S.") at-53';

his testimony provides ample suppor't for~this claim, see S. at l ,55 -( scenario development),'s, at 63 (count'er-terrorism tra'ining),

S., at 9. (working on guards 'and guard tactics in Sandia study),

l and S. at 23 (directing 24-man' guard force at highly sensi-tive installation). Applicants attack these qualifications, not as.being insufficient,Jbut'on the ground'that they do not apply to nuclear power plants. . Again; Intervenors disagree with'Appli-

_ cants'. literal application of LBP-78-36, and ask that the Board rule that Mr. Stevens has qualified as an expert la the . area of guard training. ,

Page 9

. EARL ~ROY BLEACHER , , ,

t Applicants contend that Mr. Bleacher is not qualified as an expert in any area, A.B..at,17-21; the Staff feels that he is qualified to review portions of the plan dealing with i

l weapons and repelling an Antrusion, S.B. at 7 l

,. Applicants claim that Mr. Bleacher has admitted that he does not have any "expertice" in weapons, A.B.- at 18, Bleacher deposition (hereafter "B.") at 25. However, on the next page of his deposition, B. at 26, he indicated that his , work with San-dia Laboratories involved guards using the three types of '

we,apo,ns;.specified in App. B.V.A. of Part 73, and alsq inv61ved the same design basis threat weapons specified in 10 C.F.R.*

73.1(a)(1). His response t, hat he was not an expert in weapons

,was in response to a wide-ranging question that might implicate a whole universe of weaponry. 3 Based on his Sandia experience

_ alone he has demonstrated suffic,ient weapons expertise to re-view the relevant portions of the plan. In addition, he has

_actually trained guards at the Army's Seneca Depot, B. at 27, and assembled tra,in,ing materials for foreign government guartl

. forces,' B. at 5 6. . Finally, he has received the extensive weapons training given members of the U.S. Special Forces.

Applicants characterize Mr.- Bleacher's experience in re-

_pelling intru,sion, as " limited.," A.B. at 19, despite the' fact that he was intimately involved with guard training for response and intruder repulsion at Sandia, B. at 34,11 tf. , and also

_ worked with sensitive Army counter-terrorist activities, B.-

at 56-7. He has also done computer modelling on greater-than-

Page 10 design basis threats, B. at 12. The fact that much of this work was generic in nature , B. at 17-8, is not dispositive--in fact, truly site-specific experience at this stage is impossible, since none of the proffered experts has yet seen the SHNPP plan or visited the Harris site.Mr. : Bleacher's Blue Light and Seneca

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Depot work was certainly "on-site."

Intervenors have proffered Mr. Bleacher as a generalist to review the entire SENPP plan, and believe that he has demon-strated isufficient competence to to be qualified to do so. The Staff argues that.he does not have a " background" in"several

- key areas, S.B. at 7. The Staff states that he has no background in " security," despite his Defense Nuclear Agency assessment work, B. at 24, working on Blue Light security planning, B. 'at 19,. penetrating s'ecurity tests, B. at 16, in short an extensive career in security-related matters. Mr. Bleacher sta'ted that he has no specialized training in communications or electronics, and' the Staff accordingly belidves him to be unqualified in ~

-these areas as well. However, his answers to specific ' technic-al questions demonstrate that he is familiar with the "fabri-

. cation and assembly" of electronics and communications' compo-nents into an "overall system," see 8 N.H.C. at 569. His guard training experience c' overs many electron' ice and communications aspects. He has developed packets and programs 'for defense of foreign insta11atio's n from military and terrorist attack, B.

at 5 6,'and helped: design the Blue Light set up, both of which include electronic equipment. He is familiar'with'the set up and weaknesses of sensor systems, CCTV, infrared, microwave, E-fields, and G-phones, as well as physical barriers, and ' test-

,, m - 4 46 6

D Page 11 ing the integrity of these systems, B at 15-6. Applicant's claim he does' not know of the " closing in" of chain link fences, A.B. at 19, but the question on which this supposed lack of knowledge 'is based is vague a'nd potentially misleading at the ve'ry least, B. at 38. The fact-t. hat he does not know what an H-field is, B. at 20, does not necessarily compromise his knowledge of other detection systems; and as noted' above, the

- fact that he is not famili~ar with plant operations (such as

- spen't fuel pool fault analysis or transmission line supervi-

- sion) does not detract from his' expertise in security systems on his ability to apply- that expertise to the Harris' plant.

Interven' ors believe that Mr. Bleacher has demonstbated suffi-

.cient expertise an the components and design of an "overall system" to qualify him to review the e' ntire integrated security plan for SHNFP, and request that the Board so rule.

JAMES MACKIE

• As'the Staff indicates, Mr. Mackie's position appears to be in "some doubt," S.B. at 5. Applicants have moved that Mr.

Mackie be ruled -to have voluntarily withdrawn, A.B. at 5-6, 24, since..Intervenors have " failed to reschedule the said deposi-

, tion," A.B. at 24. Intervenors regret any inconvenience th'ey

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have caused Applicants and apologize for same, but contrar7 to

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.. Applicants' contention Intervenors did in fact offer to re-

_ schedule Mr. Mackie's : deposition, only to be ' informed by coun-sel that Applicants- did not wish todo so and that they would take a position that Mr. Mackie had withdrawn. Applicants'

t Page 12 motion ought therefore to ,be denied, and Applicants should be given a chance to reconsider their position or be held to have waived their deposition (no substantial prejudice ;to Appli, cants is likely from such a ruling, since Mr. Mackie has been

. unavailable and would not be available for further d.eposition until June 13.,the Board might wish to rule separately on his qual.1fications) .

In any event, Intervenors believe that sufficient informa-

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tion has been established in the record during the Starf's ex-amination to qualify Mr.- Mackie as an expert in document secur-ity and in internal security measures. Both the Sta~ff, S.B. at f, and Applicants, A.B. at 25, argue that Mr. Mackie's expert-ise is irrelevant to the present proceedings. However, Inter-venors believe that it is in fact rhevant to the adequacy of protection,for the security plan itself and for the documents (log books, employee records, incident reports, etc. ) gener-ated pursuant to it. Mr. Mackie has expertise in developing.

and implementing security arrangements for defense and foreign servicerfacilities and document protection areas, Mackie depo-

,sition (hereafter "MK.") at 21,,49. He has poordinated training for response,to, terrorist attacks , MK. at 45 6 and partici-pated in studies of overall security systems, MK. at 47-8.

Although the thrust of his experience is in. document. security, Mr. Mackie also,(as necessary for a supervisor) worked with the other integrated. components of security systems,'MK.'at 72,

_ including detection system installation, MK.' at 66', and com~mu-nications, MK. at 67. Intervenors t$erefore ask ~that the ' Board 8

Page 13 qualify Mr. Mackie in the areas of documents security and control and in internal security measures, and that he be allowed to review the appropriate portions of the SHNPP plan.

CONCLUSION . . .

Intervenors believe that tney have proffered a group of qualified experts, who can review individual portions.of the plan pursuant to the separa^ tion " sanitization" procedure I

contemplated by ALAE 410, or in the case of Mr. Bleacher, who can review the entire integrated plan. With respect to Masrs.

Maples, Tuggle, Stevens, and Mackie, Intervenors agree with the Staff's position on allowing them to see the portions of the plan relevant to their area of expertise. With respect to Mr. Bleacher, Intervenors request that the Board rule that he

[ is qualified to review the entire plan.

l i The Staff has recommended that only one expert be all-owed to review the guard training portions of the plan, S.B. at l

10. Since review of the plan will go only to formulation of contentions, Intervenors believe that it will not expedite matters or " combine testimony" to restrict review of the plan.

i Interveriors respectfully request that the Board allow all three to review the relevant portions, leaving the decision as to the presentation of evidence at trial (the real thrust of the Policy Statement, 46 FR 28533) to the sound discretion of In-tervenor's counsel.

,, Respectfully submitted, h q. h t. g Deborah Greeablatt Counsel for Intervencra

N UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the matter of CAROLINA POWER & LIGHT _CO. Et al.

Shearon. Harris Nuclear Power Plant, Units 1 and 2 (Dockets 50-400 )

(and 50-401 O.L.)

CERTIFICATE OF SERVICE I hearby certify that copies of the foregoinghbyvemnn;' keplu h .ef

'J m Ouali-fi04 ions i Ceutr.h E Noe.vN 1 J \

HAVE been served this 4h day of ,pM 198 1 , by deposit in the US Mail, first-class postage prepaid, upon all parties whose names are listed below.

Judges James Kelley, Glenn Bright and James Carpenter (1 copy each)

Atomic Safety and Licensing Board US Nuclear Regulatory Commission Washington, DC 20555 George F. Trowbridge (attorney for Applicants) Ruthanne G. Miller Shaw, Pittman, Potts & Trowbridge ASLB Panel 1800 M St. NW USNRC Washington, DC 20036 Washi,ngton, DC 20555 Office of the Executive Legal Director Phyllis Lotchir, Ph.D.

Attn: Dockets 50-400/401 0.L. 108 Bridle Run USNRC Chapel Hill, NC 27514 Washington, DC 20555 Docketing and Service Section Pat & Slater Newman Attn: Dockets 50-400/401 0.L. CANP Office of the Secretary 2309 Weymouth Court USNRC Raleigh, NC 27612 Washington, DC 20555 -

Travis Payne Bradley W. Jones Edelstein & Payne USNRC Region II Box 12643 101 Marietta St.

Raleigh, NC 27605 Atlanta, GA 30303 Richard Wilson, M.D. MN GLWo@

729 Hunter St. LPi L-Apex, NC 27502 '- Po boa $51 2- M L Th\ei f . t).L Certified by lNu b- W N N /d

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