ML20084D071

Motion for Reconsideration & Clarification of Portions of ASLB 840420 Prehearing Conference Order Re Contention Xx. Certificate of Svc Encl

ML20084D071
Person / Time
Site:	05000142
Issue date:	04/25/1984
From:	Bay J COMMITTEE TO BRIDGE THE GAP
To:
References
OL, NUDOCS 8405010178
Download: ML20084D071 (11)

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1 00CKETED JOHN H. BAY 2

DOROTHY THOMPSON NUCLEAR LAW CENTER 3

6300 Wilshire Blvd., Suite 1200 +84 APR 30 All:08 Los Angeles, CA 90048 4

Telephone: (415) 393-9234 CFFIC" 0F 3ECEtiM

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5 Attorneys for Intervenor (Contention XX) 7 COMMITTEE TO BRIDGE THE GAP 8 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 9 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

11 THE REGENTS OF THE UNIVERSITY ) Doc. No. 50-142 OL OF CALIFORNIA )

12

) Proposed Renewal of Facility (UCLA Research Reactor) ) License No. R-71 13 14 COMMITTE TO BRIDGE THE GAP'S MOTION FOR 15 RECONSIDERATION AND CLARIFICATION OF PORTIONS OF APRIL 20, 1984 PRE-HEARING CONFERENCE ORDER 10 Committee to Bridge the Gap ("CBG") hereby moves the Atomic 17 Safety and Licensing Board panel (" Board") to reconsider, and seeks 18 clarification of, certain portions of its April 20, 1984 Pre-Hearing I'

Conference Order (" Order") as set forth below.

20 1, 2I CONTENTION XX, FAIRLY READ, INCLUDES RESPONSE PROCEDURES AND FORCES g ,. During the pre-hearing conference, CBG argued that the 24 alarm systems and response forces and procedures were covered by g Contention XX. (See, in camera, Tr. 3525-30.) On page eight of its 26 Order, the Board rules that the adequacy of the alarm system is 27 included in Contention XX. The Board ruling does not include any 29 mention of response procedures and forces; however, in its rulings on 8405010178 840425 IV PDR ADOCK 05000142 9 PDR

1 UCLA's requested expurgation and deletions, it sustains the expur-2 gation of information dealing with response procedures and forces, 3

thereby appearing to implicitly ru: e that response procedures are not 4 part of Contention XX.

CBG seeks clarification of this ruling and, 5

to the extent that the Board has removed response procedures and j 6 forces from consideration under Contention XX, seeks reconsider-7 ation.

8 In the same manner as the adequacy of the alarm systems, the 9

{ adequacy of response procedures and forces is central to an evaluation 10 of UCLA's security system. Again, as with the alarm systems, while

11 not specifically enumerated, CBG's allegation that the response 12 procedures and forces are inadequate is clearly contemplated by the 13 Contention. Indeed, Contention XX, Paragraph 3(a), impliedly deals 14 with response procedures and forces. Further, at the time Contention 15 XX was draf ted, CBG had not, of course, had access to the security plan 16 which would have enabled it to be more specific. In short, the Board's 17 rationale in including the alarm system is completely applicable to 18 response forces and procedures. In the Board's words, "the thrust of 19 the contention, taken as a whole is to question the adequacy of the c

20 measures to protect against theft and sabotage." Clearly, the 21 response procedures and forces are a substantial portion of those 22 measures.

23

• Mr. Carlson's comments at page 3542 of the h camera

{ 24 transcript illustrate the problem. As Carlson notes, in the event of 25 sabotage, the act will be accomplished quickly and, if the response 26 is not rapid, the damage will be done. Response procedures adequate 27 for thef t detection may not be adequate for sabotage. Thus, without 28 I

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consideration of the manner in which UCLA would respond to violation l

2 of the alarm system and other breaches of the f acility's security, an 3

analysis of the adequacy of the security system is virtually mean-4 ingless. Therefore, CBG asks the Board to specifically rule that the 5

adequacy of the response procedures and forces are raised by the 6 Contention.

7 II.

8 MR. RICHARD ROGGE IS QUALIFIED AS A SECURITY EXPERT AND SHOULD BE ALLOWED ACCESS TO PROTECTED INFORMATION 9

10 On page six of its Order, the Board rules that Mr. Rogge is 11 qualified as an expert to evaluate the physical security of the UCLA 12 facility. However, the Board then goes on to deny Mr. Rogge access 13 to restricted information for the reason that they believe his 14 expertise overlaps with that of Mr. Cornwell and that access to the 15 plan should be restricted so as to eliminate cumulative reviews. This 16 conclusion dramatically extends the principles set forth in ALAB-410 17 to an unnecessary extreme and is unwarranted by the facts of this 18 case.

19 Mr. Rogge is a security expert. No question has been 20 raised, nor could such a question be raised, regarding his veracity 21 or ability to abide by the protective order. Indeed Mr. Rogee 22 maintains a Department of Defense Type A consultant security clear-23 ance. His experience is complementary, not cumulative, to Mr.

24 Cornwell's. Mr. Rogge, Mr. Cornwell and Dr. Plotkin were proferred 25 as a team of security experts to conduct a collaborative review of the 26 physical security of this f acility. As was demonstrated on voir dire, 27 each is a security expert, yet their backgrounds and experiences are 28 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - _ _ - _

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1 Besides being a general security expert, Mr. Rogge has e

2 unparelleled experience with security at government and public fa-3 cilities. This experience is uniquely applicable to this case given 4 the location of the reactor and the consequent necessity of having and 5 maintaining a security system which is effective yet compatible with 6 the institutional realities of a university campus. This govern-7 mental and public facility background not only gives him unique 8 ability to accurately assess the strengths and weaknesses of the UCLA 9 reactor security system, but it will be invaluable to the Board in l 10 determining what types of security measures are realistic and appro-11 priate for UCLA.

12 Mr. Rogge is also particularly expert in evaluating the 13 administration of security systems, i.e., what is the reality behind 14 a plan which calls for " routine checking of the alarm systems."

15 Again, this expertise is critical to an evaluation of security at the 16 UCLA facility. Being a large bureaucratic educational institution 17 where security considerations are the exception, not the norm, the 18 administrative systems and procedures for implementing the security 19 plan are the central elements of an effective security system. Thus, 20 Mr. Rogge's expertise in this area is significant and important to an 21 adequate review of UCLA's security system.

22 CBG's preparation and presentation of its case is severely 23 p'rejudiced and the quality of the record will be impaired by the 24 Board's refusal to allow Mr. Rogge access to the secured inf 7rmation.

25 As a legal matter, the Board has set an extremely high standard for 26 , qualification of experts to review protected information, which stan-27 dard f ar exceeds anything even suggested by ALAB-410 and other appeals ,

23 board decisions and is without legal basis. As a practical matter, l

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1 there is no justification for barring Mr. Rogge from reviewing the 2 protected information. He is qualified, he presents absolutely no 3

additional security risk, and he brings unique qualifications to the 4

Board's security review of the UCLA f acility. Permitting him access 5

to the protected information works no prejudice to the security of the 6

facility nor the other parties, while not permitting him access is 7 extremely prejudicial to CBG.

8 The Board's ruling on Mr. Rogge is also of fensive to CBG's 9

rights as a party litigant. The Board, by finding that Mr. Rogge, Mr.

10 Cornwell and Dr. Plotkin are each qualified, then taking it upon 11 itself to single out Mr. Rogge as being cumulative, is tantamount to 12 its dictating both the tactical and substantive manner in which CBG 13 must prepare and put forth its case. The Board is choosing our 14 witnesses. There is absolutely no legal basis for such Board 15 interference with a party's preparation of its case.

! 16 As suggested in ALAB-410, the Board has determined that the 17 security plan and related documents are relevant to Contention XX; it 18 has made the release of the plan and other documents subject to a 19 protective order; and it has determined that Messrs. Plotkin, Rogge

20 and Cornwell are qualified to review the information. Indeed, it has t

21 even expurgated the " gory details" from the plan and inspection

'f 22 reports. There is no legal or factual basis for extending its ruling 23 'to eliminate Mr. Rogge. The ruling is erroneous and should be recon-24 sidered.

25 III, 26 1 OBJECTIONS TO EXPURGATIONS 27 CBG objects to the manner in which the Board has proceeded 23

] in reaching its rulings on UCLA's objections to the release of certain -

1 portions of the security plan and security inspection reports. At the 2

pre-hearing conference, CBG's lead counsel was given approximately 3

ten minutes to review over 75 pages of security plan and security 4

inspection reports, which plan and reports were already expurgated.

5 CBG's attorneys have been given no other opportunity to review the 6

expurgated versions of the plan and inspection reports, let alone to 7

see the unexpurgated documents. By proceeding in this manner, the 0

Board has denied CBG an opportunity to f airly litigate these rulings.

9 Notwithstanding the fact that CBG has been denied an 10 opportunity to adequately review the expurgation requests, it seeks 11 reconsideration of and makes objections to the following specific 12 rulings:

13 Page 10, Paragraph 2, (Circumvention of Alarms) : The Board 14 has ruled that the adequacy of the alarm is under consideration in 15 Contention XX. It is, thus, inappropriate to uphold expurgations of 16 items dealing with circumvention of the alarm systems. It is an 17 absurd waste of time to place our experts in a position of identify-18 ing possible circumventions of the system only to have UCLA claim that they are already aware of such circumventions and they have taken 20 measures to protect against them. This is not a game of hide and seek, 21 nor is it a test of the expertise of CBG's witnesses, it is discovery 22 calculated to aid CBG in the preparation of its case and to provide 23 this Board with an adequate and serious review of the security of the 2I UCLA facility. No purpose is served, and much prejudice is oc-25 '

casioned, by upholding these expurgations.

20 - Page 10, Paragraph 3 (Accessibility of Irradiated Fuel):

27 l Although CBG has not reviewed the expurgated information, "informa-28 '

tion related to the accessibility of irradiated fuel" can only mean

.i I access to the fuel in the reactor since such is the only irradiated 2 fuel at the facility. Access to the irradiated fuel is the central 3

consideration in the security of this f acility. UCLA has already gone 4

on record to state that the reactor, itself, is the primary security 5

barrier. Thus, Security Plan items 5 and 6 should not be expurgated.

0 Page 10, Paragraph 5 (Police Resources and Response Times):

7 As argued above, the response procedures and forces are central to the 8

security of this facility and should be subject to review under 9

Contention XX.

10 ty, 11 10 C.F.R. S 73.60 DOES NOT PROVIDE AN UPPER LIMIT TO SABOTAGE PROTECTION On Page 12 of its Order the Board states that 10 C.F.R. S 73.40(b), (c) and (d) and S 73.60 provide an upper limit to the range ,

of sabotage protection measures that UCLA may be required to under-take. This conclusion is erroneous, sets a standard which is not p countenanced under the regulatory scheme, and should be reconsidered.

10 C.F.R. SS 73.67 and 73.60 pertain to the physical 18 39 protection of SNM from thef t or diversion. Section 73.60 was adopted as, and is, a regulation designed to provide theft protection, not sabotage protection. This is evident from the fact that the trigger-ing factor in 73.60 is the amount of fuel that could potentially be diverted, not some measure relevant to sabotage, such as levels of fuel irradiation or potential consequences. It is further evident from the fact that the 100 rem exemption is included in 73.60, an g exemption that makes sense only from a thef t or diversion prevention p point of view. Finally, the very language of 73.60 speaks in terms 7g of thef t or diversion, not sabotage. Thus, the Board is citing a thef t

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1 and diversion section as providing an upper limit for sabotage protec-2 tion. This is like comparing apples and oranges.

3 It is true, that certain thef t or diversion measures will 4

provide some protection against sabotage. Thus, compliance with 5

73.60 may provide a measure of sabotage protection just as compliance 0

with 73.67 may provide some measure of sabotage protection. However, 7

to take this fact and create an upper limit for sabotage protection 0

measures out of a thef t and diversion regulation is clearly erroneous.

9 As the Board has recognized in its earlier rulings, it must 10 make a site-specific determination of the adequacy of the physical 11 security at the UCLA facility. As a factual matter, the Board's 12 ultimate conclusion may or may not be that compliance with a given 13 theft and diversion section provides adequate sabotage protection.

14 There is no basis, however, for converting this possible factual '

15 conclusion into a legal standard.

16 y, II OTHER PROCEDURAL MATTERS 18 on page 15 of the Board Order, a schedule of proceedings is 19 set forth culminating in a hearing on contention XX. CBG seeks 20 clarification of that schedule in that there are no provisions for the 21 pre-filing of testimony or for the identification of Staff and UCLA 22 witnesses or opportunities for CBG to conduct discovery of Staff and 23 UCLA cases.

24 VI.

25 l, CONCLUSION 26 1 On the basis of the foregoing, CBG seeks reconsideration of 27 25

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the specified portions or the Board's April 20, 1984 Pre-Hearing 2 Conference Order and clarification of other specified portions 3 thereof.

4 DATED: April 25, 1984 5

Respectfully submitted, 6

JOHN H. BAY DOROTHY H. THOMPSON 7

NUCLEAR L W CENTER By L Lead Att ney for G6mmittee to Bridge e Gap on Contention XX 11 12 13 14 15 16 17 18 19 20 21 22

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26 1 27 li 28 9

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United States of America NUCLEAR REGULATORY COMMISSION j BEFORE THE ATOMIC SAFETY AND LICENSING BOARD i

j In the Matter of f THE REGENTS OF THE UNIVERSITY )

OF CALIFORNIA ) (Proposed Renewal of Facility i I

(UCLA Research Reactor) ) License)  ;

)  !

1 1

l CERTIFICATE OF SERVICE i i i i I hereby certify that copies of the attached COMMITTEE TO i l BRIDGE THE GAP'S MOTION FOR RECONSIDERATION  ;

l AND CLARIFICATION OF PORTIONS OF APRIL 20, 1984 PRE-HEARING  !

j CONFERENCE ORDER, in the above-captioned proceeding have been  !

j served on the following by deposit in the United States mail,

, first class, postage prepaid, addressed as indicated, on this t

! date: April 26, 1984 '

1 -

l John H. Frye, III, Chairman [

Atomic Safety & Licensing Board '

l

U.S. Nuclear Regulatory Commission i j Washington, D.C. 20555 Dr. Emmeth A. Luebke Administrative Judge ,

i Atomic Safety & Licensing Board '

) U.S. Nuclear Regulatory Commission ,

J Washington, D.C. 20555  !

! e i

Dr. Glen O. Bright

Administrative Judge  !

i Atomic Safety and Licensing Board

U.S. Nuclear Regulatory Commission Washington, D.C. 20555 l Chief, Docketing & Service Section (3) i Office of the Secretary  !

! U.S. Nuclear Regulatory Commission  !

j Washington, D.C. 20555  ;

t j Counsel for NRC Staff  !

U.S. Nuclear Regulatory Commission  ;

Washington, D.C. 20555 i Attention: Ms. Colleen P. Woodhead '

i i

William H. Cormier '

Office of Administrative Vice Chancellor i University of California 7

405 Hilgard Avenue 1 Los Angeles, California 90024  ;

J Christine Helwick Glenn R. Woods Office of General Counsel 590 University Hall 2200 University Avenue Berkeley, CA 94720 Lin Naliboff Deputy City Attorney Office of the City Attorney City Hall, 1685 Main Street Santa Monica, CA 90401 Committee to Bridge the Gap 1637 Butler Avenue, Suite 203 4 Los Angeles, CA 90025 Daniel Hirsch 'I -

P.O. Box 1186 Ben Lomond, CA 95005

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Dorothy Thompson v

Nuclear Law Center , ,

6300 Wilshire Blvd., Suite 1200 .

,s Los Angeles, CA 90048 ,-

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JOHN N. p Y i '

Counsel for Intehvenor-COMMITTEE To,-BRIDGE THE GAP N

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