ML20082B161
| ML20082B161 | |
| Person / Time | |
|---|---|
| Site: | Neely Research Reactor |
| Issue date: | 03/20/1995 |
| From: | Gunnells E, Nordin R Neely Research Reactor, ATLANTA, GA |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#295-16558 95-704-01-REN, 95-704-1-REN, REN, NUDOCS 9504050038 | |
| Download: ML20082B161 (12) | |
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- UNITED STATES OF AMERICA f .
DOCKEIED IM, USHRC gg$ 2 ; AM 9 2perF.AR REGUIATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges: D RT 31 P2 O Charles Bechhoefer, Chairman Dr. Jerry R. Eline OFFICE . S:fOFiAin
. J/;rF 00CXE I SG Dr. Peter S. Lam me
) Docket No. 50-160-Ren In the Matter of
) f-GEORGIAINSTn u nx OF )
TECHNOLOGY, )
Atlanta, Georgia ) ASLBP No. 95-704-01-Ren
)
Georgia Tech Research Reactor )
)
(Renewal of Facility License )
) March 20,1995 No. R-97)
GEORGIA INSTITUTE OF TECIINOLOGY'S RESPONSE TO THE BOARD'S MEMORANDUM AND ORDER AND OBJEu nON TO PROPOSED INTERVENOR'S CONTENTION NUMBER 5 Sumaarv.
The Georgia Institute ofTechnology (Georgia Tech) submits this response to the Board's Memorandum & Order dated March 3,1995. In this pro 9ng to renew Facility License No. R-97 for the Georgia Tech Research Reactor (GTRR), Georgians Against Nuclear Energy (GANE) has filed a Petition to Intervene. Georgia Tech asks the Board to hold that GANE, on this record, lacks the specific and concrete interest that is necessary for intervemion. If the Board does permit GANE to intervene, then Georgia Tech seeks a mhng that terrorism is not a permissible contendon in a licensing proceedmg.
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. The Commianian has found, both through ndemaking and adjudication, that the yie aios of terrorism is the responsibility oflaw enferrama=* and other l government odicials - nas the .i+3cest in a heensing proceeding. Indeed, the NRC has )
1 considered the question ofpotential terrorist action against the GTRR during the 1996 )
1 Olympic Games and determined that Olympic security is a matter for law enforcement l
authorities. Those entharit;. nre now organized into the Olympic Security Support j Group (OSSG), which consists of 34 federal, state, and local lsw soforemment agencies, 1
and they will be supplemented by the United States Armed Forces. As the NRC found, i
the security of the GTRR during the Olympics is bemg handled by the appropriate authorities, and it is simply not a legnimate issue during a license renewal proceeding. '
ProceduralJIistory GANE fded its initial Petition to Intervene on October 26,1994. On
- November 23,1994, the Board entered a Memorandum & Order finding that GANE had failed to show that it had standing tom' tervene. The Board allowed GANE to fde an Amended Petition on December 30,1994. Following a telephone conference on January 10,1995, the Board entered a Memorandum & Order on January 11,1995, permitting GANE to once again attempt to show that it has st di4g to intervene. In response, GANE filed a supplemental affidavit of Mr. Robert Johnson. Georgia Tech filed its objection to GANE's Petition on January 25,1995. At a hearing on January 31-February 2,1995, GANE was unable to demonstrate that Mr. Johnson was a member of its organization (ass Hearing Transcript, at 28), but the Board reserved judgment on the
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., issue ofintervention.
FoHowing the hearing, the " card issued a Memoran&rn & Order, l
l requesting that the parties address the relevant.e, if any, of 10 C.F.R. 6 73.60(f) on - ;
GANE's Contention 5, which relates to the possibility of a terrorist attack on the GIltR :
l during the 1996 Atlanta Olympic Games.
ElISBEIBE
- 1. 10 C.Flt 6 73.60(f) da== not newet w 'T- =b of the W=*ia- --ity !
plan for the GTRR.
Nothing in the Cammianina's rules or case law suggests that Cantantian. 5 should be melmitted in this proceeding. First, the Commianian already has considered the question of the terrorist threat to GTRR, and, in a recent ruling, it canchulari that the !
safety of the GTRR was properly addressed by law enforcement of5cials. In rejecting a comment reco==eading that the GTRR be shut down "in light of the upcoming 1996 Olympics," the Commission noted that: ,
[The NRC]'s threat assessment actmties are performed on a continuing basis, in close liaison with the inteuigence '
community. Should the level of domestic threat change at any time, appropriate action will be taken by the NRC. ,
Specificauy, the Atlanta Field Of5ce of the FBI has '
estabhshed liaison with au Federal agencies in Georgia, iadadiaa the NRC, relative to the Olympics. The FBIis i the lead law enforcement agency in charge of the ,
Olympics, and, to date, has not indicated that there is any l threat to NRC-licensed facihties or matenals relative to the Olympics.
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Protection Against Malevolent Use of Vehicles at Nuclear Power Plants, 59 Fed. Reg. I 38,889,38,896 (Aug.),1994).
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- 10 C.F.R. { 73.60(f) does not suggest a ddrerent readt. That section ,
provides that the Consmission may require " alternate or addihaa=1 measures deemed necessary to protect 'against radialagical sabotage" at certain nonpower reactors. The regulation was adopted only two years ago - it has produced no case law, and it !
garnered no commaat when it was proposed. Clardication ofPlysical Protection Requirernents at Fixed Sites, 58 Fed. Reg. 13,699 (1993). .Nevertholoss, in the prearnble ;
1 to the adoption of this section, the NRC stated that some non-power lican==== bad U already implemented additional measures agamst sabotage.
[T] hose nonpower reactor hcensees currently operating at or above 2 megawatts thermal, who have been identi8ed as possibly being vulnerable to radiological sabotage, are voluntarily imp'= kg additional ma==ures to provide physical protection against radiological sabotage.
Id. !
H Georgia Tech was one ofthe non-power licensees to take this vohmtary step. When Georgia Tech submitted its renewal application to the Commission on April 19,1994, attachment seven was the revised Physical Security Plan, which details these additional measures. Because the Physical Secunty Plan is d===ifiad Georgia Tech '
cannot relate those voluntary measures in this Memormadum, but Georgia Tech would be happy to make a copy of the Plan available to the Board at its request. It is critical to recognize that the Security Plan has undergone the scrutiny of the StafE and it was found sufEcient to meet NRC regulations. Since this Plan already included voluntary provisions to protect against radiological sabotage, it would not be appropriate for the TOTFt_ P.04 y er-e u- m g- u r,- , m- , - - - y vm ,- - - , , - - - - -- - _ m -m_
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Board to anler Georgia Tech to modify the plan based on subsection (f).
As the NRC recogniand, law enforcement ahimls are responsible for assessing au Olympics-related threats. The OSSG is the planning body responsible for aH I
Olympic security issues. - Terrorist threat assessment and response on the Georgia Tech f
campus clearly faHs within that group's jurWm Moreover, Congress recently aHotted over $14 miDion for the Armed Forces to help provide additional security for the .
Olympics. H.R. Conf. Rep. No. 747,103d Cong.,2d Sess. 5 (1994).
Furthermore, this issue cicarly fans outside the ambit ofthis license-renewal procedure. As the followmg section &==ns Eas, it is law enforemmanr and ,
other government officials - not the applicants - who are responsible for detmnining and responding to any percaved threat of terrorism agamst nuclear facdnties.
- 2. U='= 10 C F ll 6 50.13. terroriem is not an mM=& *A in a liceming nroceeding.
The Commission has stated, both through rulemaking and a4udication, l i
that a licensing board may not require that an applicant consider the possibihty of terrorism in its security plan. 10 C.F.R. f 50.13 provides in part that an applicant:
"is not required to provide for desgn features or other measures for the specific purpose of protection against the effects of(a) attacks and destructive acts, including Waga directed against the facility by an enemy of the United States, whether a foreign governmant or other person. . . ."
GANE's contention that the GTRR could be a terrorist target is not an admismNe contention in this case. Georgia Tech, under the plain terms of f 50.13, is not. obligated 5-I
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to prevent terrorian in Atlanta. That is the responsibility of the federal, state, and local 1
law coforcement authorities - each ofwhich is already planning the security of the Olympic Games in general and especially the GTRR. -l As a Board explained in Commonweakh Edison Co. (Braidwood Nuclear Power Station, Units'I & 2), LBP-85-27,22 NRC 126,133 (1985): ,
Section 50.13 was adopted by the . . . AEC in 1967 because there was an obvious, p.M need to exempt applicants from being forced to protect against certain types of nahtary or paramilitary attacks which the . i t'a==niasian recognized were beyond the sphere of an applicant's responsibility. . . When the Commission 6M the pokey of wia: hostile attacks from I
Li'i==% it did so based on its determination that the country's national security is intended to be left entirely to 8
tb nation's defense enhlishmant and security agencies In Sia=*1 v. AEC. 400 P 2d 778 (D.C. Cir.1968), the Court of Appeals afErmed a Commission decision based on this reasoning. Sag Florida Power & r icht Co. (Turkey Point Nuclear Gensruting Units 3 & 4),4 AEC 9 (1967).' At the time the Can=niasian issued its FloridaPower decision, { 50.13 was only a proposed rule. Ega 32 Fed. Reg. 2821 (Feb.11,1967). The Siegel Court m....=&.d the bases on which the Cornminaion made its decision as:
(1) the impm*=hility, particularly in the case of l civilian industry, of anticipating accurately the nature of caemy attack and of designing defenses against it, (2) the settled tradition oflooking to 2 6 50.13 specdically apphes to license applicants for " production or utihzation" ,
facilities, but its logic and its policy rational suggest that it applies a fortiori to applicants for small im4 reactors. It would be strange indeed if the Comminaion intended to exempted large reactor operators from planning for terrorist attacks while intending to require research reactor operators to provide their own protection.
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the mihtasy to deal with this problem and the '
consequent sharing ofits burdens by all citizens, and (3) the unavailability, through secunty ch.Mentiaa and otherwise, of relevnet infonnation and the undesirability ofventilating was is available in public proceedings.
400 F.2d at 782. The Court went on to uphold the essence of { 50.13: "[ Congress] did n A expect [an applicant) to d==anstrate how his plant would be invulnerable to whatever destructive forces a foreign enemy might be able to direct against it in 1984." ,
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hl at 784. Jiga glag P--viv=al= Power & T i-h* Co. (SW - Steam Electric i
Station, Units 1 & 2), LBP-79-6, 9 NRC 291 (1979) (Ap+-a+= need not provide any measures for the spedfic purposes ofr etection against the effects ofmihtary anacira l
-i directed against a facility); Laa. T-w i i heia- Co. (Shoreham Nuclear Power Station), .
ALAB-156, 6 AEC 831, 851 (1973) (6nding that fiingst upheld i 50.13, which " obviates the necessity of 4. tion [of sabotage) in a licensing pr~a-dia="). .
As the Executive Director for Operations found in Ohio Citizens for Responablefaergy. DPRM-84-1,19 NRC 1599,1604 (1984), the jiingel dension "is no les valid today than it was (in 1968]." Boards considering this question uniformly have determinad that protection from enemy or terrorist attack is not a valid issue under {
50.13. jign, g,g,, Chv ==_= meric m.. ._n... Co. (Peny Nuclear Power Plant, Units 1 & 2), LBP-81-42,14 NRC 842, 843 (1981); Boston Edison Co. (Pilgrim Nuclear Power Station, Unit 2), LBP-81-3,13 NRC 103 (1981); Pa== merie Power Co.
(Douglas Point Station, Units 1 & 2), ALAB-218,2 AEC 79 (1974).
GANE cannot take refuge in the precisc 1======.=*of the nde by arguing J
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A that an attack or destructive act by a group other than an"enesny of the United States" is not covered by the provision. In C==EM2=' Fdiaan Co. ofNew Yort Ine (Indian :
Point Power Station, Unit No. 2), ALAB-202,7 AEC 825, 829-30 (1974), the Appeals Board held that i 50.13 applies equally to attacks by "a==mias of the United States" and to armed saboteurs that do not quahfy as " enemies." The Board reasoned that "[fjrosn a l practical standpoint, if there is an attmele of substantial force, those who have to decide whether to seek ===idanea and whather to provide responsive capabilities, wil1 probably not first ponder over the question of whether or not the force is an enemy of the United l
States." Id Set Alan Noph-rn S* +-= Power Co. (Tyrone Energy Pade, Unit 1), ISP- -
77-30, 5 NRC 1197 (1977) ("the 'well armed (i.e., haraalrae. antitank guns, anortars) terrorist group' to which [inte venor) has referred in its 8adiay is predsely the type of sabotage which cammianian regulations do not require an ApF=a' on its own to counteract"). GANE's cantantian that the facdity is vulnerable to "a rocket taunchar or grenade" clearlyis invalid.
Furthermore, GANE's contention that the GTRR has inadequate security is based solely on the " eyewitness" account of Glenn Carroll, a local artist and member of GANE. This is aninedficiant basis for such a contention. A Board roccetly rejected ;
a sinular allegation (that a facihty was vulnershie to terrorist attack) on the grounds that the contention "was not substanti rad" by the intervenor, l'aralia= Power ==d r3=ht Co.
l (Brunswick Steam Electric Plant, Units 1 & 2), DD-93-21, 38 NRC 356 (1993); agg ghg1 l
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Paciflo Gna & Elamric En. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), LBP 21,23 NRC 849 (1986)(same). GANE's allegation that"the entire [GTRR] security I
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system consists of a chain-link fence with some barbed wire on top" is false. As the Security Plan makes clear, GTRR is adequately ddandad Moreover, GANE ignores the fact that the additional secunty for the Olympics will be coordinated and perfonned by the FBI, the OSSG and the United States Armed Forces.
The "$M secunty concerns surrMa= the Olympics does not warrant departure from 5 50.13. During the Persian OutfWar, the Can=nie ,
canaid red a petition for ruisenaking to upgrade the det.grA;=i:; threat from radiological ,
sabotage to nuclear power reactors. In re: Wdaar Cna+eol fa=riada DPRM-91-2,33 :
NRC 587 (1991). The NRC rejected Petitioners argument that the war, the growth of State-spm rged terrorism, and changes in terrorist tactics all indicated the need for more security by the operators.11 at 590. This Board should do the same.
Conclusian For all of the above reasons, this Board should reject GANE'scantantian Number 5. :
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- Nordin Advisor GeorgiaInstitute ofTechnology ,
E. Gail Gunneus Deputy ChiefIgal Advisor GeorgiaInstitute ofTechnology
. Dated at Atlanta, Georgia this 20th day ofMarch,1995
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UNITED STATES OF AMERICA 00CKEIED
'NUGEARREGULATORY COMMISSION- USliRC ATOMIC SAFETY AND LICENSINGBOARD
~
Before Administrative Judges: % MR 31 P2 :44 1
Chades Bechboefer, Chairman ' 0FFICE N EECRETi4RY Dr. Jerry R. Khne 00CKE Tind a . ERVICF ULAND.'
Dr. Peter S. Lam
)
i In the Matter of ) Docket No. 50-160-Ren ~
)
GEORGIAINSTITUTE OF )
TECHNOLOGY, ) !
Atlanta, Georgia ) ASLBP No. 95-704-01-Ren
)
GeorgiaTechResearchReactor ) l l
) l (Renewal ofFacility License )
No. R-97) ) March 20,1995 NRTIFICATE OF WRVrm !
I hereby cestd'y that copies of the foregoing Response have been served upon the following persons by U.S. mail, first class, except as otherwise noted and in wi.i.i.cs with the requir=== ara of 10 CFR Sec. 2.712.
. Office of Comminaion Sherwin E. Turk, Esq.
Appellate A@f* Susan S. f'hidakal, Esq.
U.S. Nuclear Regulatory Comminaion Office of the GeneralCounsel Wa4tes, D.C. 20555 U.S. Nuclear Regulatory Commission W=Waran, D.C. 20555 Ad. I 2+.tive Judge Jerry R. Kline Atomic Safety andLicensingBoard Glenn Carroll U.S. Nuclear Regulatory Comminaion Georgians AgainstNuclearEnergy Washington, D.C. 20555 - P,0l Box 8574 Atlaats, Georgia 30306
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l Administrative Judge M=iainrative Judge Peter S. lam CharlesN, Chairman Atomic Safety andLicensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Cammianian
'. U.S. Nuclear Regulatory enm====ian Washington,D.C. 20555' l l
Washington, D.C. 20555 - \
l Dated at Atlants, GAthis
- 20th day ofMarch,1995 q Submitted, ;
I
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l A.Nordin l Legal Advisor l GeorgiaInstitute ofTechnology !
&Y$b>
E. Gail Gunnells Deputy ChiefLegal Advisor GeorgiaInstitute ofTechnology i
TOTAL P.10 tr -w r*-w-e