ML20095L214

Response to Concerned Citizens of Louisa County,Va (Cclc) Revised Contention 4 Re Physical Protection Sys for Spent Fuel Shipments.Protective Order Necessary for Cclc Access. Certificate of Svc Encl

ML20095L214
Person / Time
Site:	North Anna
Issue date:	08/27/1984
From:	Maupin M HUNTON & WILLIAMS, VIRGINIA POWER (VIRGINIA ELECTRIC & POWER CO.)
To:	Atomic Safety and Licensing Board Panel
References
OLA-1, NUDOCS 8408300177
Download: ML20095L214 (14)

Text

N August 27, 1984 4

UNITED STATES _OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC 00c SAFETYANDLICENSINGBOARD3fq{0 In the Matter of $@729 p2:57 VIRGINIA ELECTRIC AND POWER ) DocketcNom,50-338/339-OLA-1 COMPANY )

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(North Anna Power Station, )

Units 1 and 2) )

APPLICANT'S RESPONSE TO CCLC'S REVISED CONTENTION 4 I.

Summary CCLC may effectively pursue its Revised Contention 4 only if CCLC has access to certain portions of Vepco's phys-ical protection system for spent fuel shipments. Those portions, however, constitute " safeguards" information with-in the meaning of NRC's regulations and may be made avail-able to CCLC, if at all, only in acccrdance with a protec-tive order. Compliance with such an order may be complex and costly. That being so, this Board should give CCLC 10 days to advise the Board whether it wishes to gain access, subject to the kinds of conditions typical of such orders, to the portions of the Vepco physical protection system that concern it.

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-.s II.

Argument A. . Revised-Contention 4 CCLC-contends that Vepco has not shown.that its phys-ical protection system satisfies the NRC requirements in 10 C.F.R. S 73.37. Setting out the basis for this contention, CCLC contends that Vepco's " Spent Fuel Transportation Routing Plan For Transshipment from Surry . . . to North Anna . . .

is inadequate in that it does not:

include procedures for coping with circumstances-that threaten deliberate damage to a spent-fuel shipment and with other safeguards emergencies, as required by 10 C.F.R. S 73.37 (b) (2) . . . .- .

- include instructions for each escort for dealing with threatened emergencies, as required by 10 C.F.R. S 73.37 (b) (3) . . . .

provide that arrangements have been made with local law enforcement agencies for dealing with emergencies, as required by 10 C.F.R.

S 73.37 (b) (6) . . . .

provide a description of the immobilization device or devices to be used on transport vehicles, as required by 10 C.F.R S 73.37 (c) (4) .

1 The " Spent Fuel Transportation Routing Plan for Transshipment from Surry Nuclear Power Station, Units 1 and

. 2 to North Anna Nuclear Power Station, Units 1 and 2" (the Plan) was submitted to NRC on July 13, 1982 by Vepco with Vepco's' request for NRC's advance approval under 10 C.F.R.

S 73.37 (b) (7) of its proposed shipping routes. The Plan is Vepco's effort to comply with the route approval l requirements set out in NUREG-0561, entitled Physical )

Protection of Shipments.of Irradiated Reactor Fuel (June 1980) at page 20. The ' Plan does not purport to constitute or describe the entire physical protection system required under 10 C.F.R. S~73.37, nor is it required to.

We.will describe briefly 10 C.F.R. S 73.37 and then discuss the disposition we recommend.

B. 10 C.F.R S 73.37 This provision requires Vepco, in connection with its shipments of spent fuel, to establish, maintain and imple-ment a physical protection system. Section 73.37 (a) sets out performance objectives, S 73.37 (b) sets out general requirements and S 73.37 (c) sets out particular require-ments for shipments by road, which Vepco contemplates for its Surry-to-North Anna shipments.

Although NRC approval is required in advance for the shipping routes (S 73.37 (b) (7)) , nothing in S 73.37 requires advance approval of the overall physical protection system by NRC. Moreover, for all that appears on the face of S 73.37, it is satisfied so long as the physical protection system is established before shipping starts. Thus, to the extent any portion of Vepco's system may not be complete,2 Vepco is not in default under S 73.37.

2 In fact Vepco's physical protection system is now complete in all respects save one: the choice of vehicle immobilization device must await the selection of the transporter for the spent fuel shipping casks.

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12. Consideration of the Contention Should be Deferred Briefly Pending Reconsideration by CCLC.

This contention is a challenge to the adequacy of a syste' that CCLC has.been unable to review in its entirety.

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-obviously, if.CCLC-is to evaluate and challenge effectively the portions of the physical protection system described in

.its Revised Contention 4, it must have access to them.

Those portions, however, are " safeguards information" and thus the subject of special NRC requirements.

Section 73.21(a) requires:

Each licensee who . . .. transports, or delivers to a carrier for transport . . .

! more than 100 grams of irradicted reactor

[ fuel . . . [to] insure that Safeguards l Information is protected against unautho-f rized disclosure. To meet this general performance requirement, licensees and persons' subject to this section shall estab-lish and maintain an information protection system . . . .

In connection with physical protection in transit--the I. subject of Revised Contention 4--S 73.21 describes the "in-formation to be protected" as:

(iii) Details of vehicle immobilization features, intrusion alarm devices, and l communication systems.

(iv) Arrangements with and capabilities of local police response forces . . .

(vi) Procedures for response to safeguards emergencies. S 73.21(b) (2)

e Thus, each portion of the Vepco physical protection system that CCLC would have to review in order to pursue its Revised Contention 4 effectively'is "information to be L . protected" under S 73.21 of Part 10. Section 73.21(c) limits the classes of persons who may have access to such I

, information. The only_ exception that might apply to CCLC is found in S 73.21(c) (vi), which permits access by "an individual to whom disclosure is ordered pursuant to S 2.744 (e) of [Part 10]."

Section 2.744 of Part 10, which' deals on its face only with the production of NRC records and documents, permits disclosure of information dealt with in S 73.21 where dis- i closure "is found by the presiding officer to be necessary to a proper decision in the proceeding . . ." The Atomic Safety and Licensing Appeal Board, moreover, has indicated that the guidelines governing the production of safeguards information from an applicant and those governing production of NRC's protected information are the same. Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Station, Units 1 and 2), ALAB-410, 5 NRC 1398, 1402 (1977).

The terms under which a security plan for an operating station would be disclosed to an intervenor were the subject of the litigation in Diablo Canyon. There the Appeal Board rejected the argument that access to a security plan by an intervenor is inappropriate, but the Appeal Board said:

Nevertheless, as we have indicated, secur-ity plans are indeed sensitive . . . .

[T] hey are clearly not to be made avail-able to the public at large. And while they must be released to interested parties under appropriate conditions, that does not mean that in all cases they need be released in their entirety or to anyone selected by the intervenors or without protective safeguards.

(11. at 1403-04.)

The Board went on to say:

If and to the extent released, the plan may - and in most circumstances probably should - be subject to a protective order.

See 10 CFR S 2.790 (e) and S 2.740 (c) .

(M. )

Moreover, the Appeal Board held that:

A security plan need not be revealed to a witness who lacks relevant expertise for evaluating it. Access to the plan or portions thereof should be given only te witnesres who have been shown to possess the technical competence necessary to eval-uate the portions of the plan which they may be shown. Any other course would con-travene the requirement that access be afforded only to ' persons properly and directly concerned' (10 CFR S 2.790 (b) (6))

. . . . (M. )

The Appeal Board added that the party sponsoring the expert witness has the burden of demonstrating his expertise. Id.

at 1405.

In a later decision in the same proceeding, the Appeal Board issued a protective order pursuant to which a " sani-tized" copy of the Diablo Canyon security plan was to be released, along with a required Affidavit of Non-Disclosure that was to be executed by any person given access to the I

plan under the Protective Order. Pacific Gas and Electric Co. . (Diablo Canyon Nuclear Power Station, Units 1 and 2),

ALAB-592, 11 NRC 746 (1980). Copies of the Protective Order I and-the~ Affidavit are attached hereto as Attachment 1.

- A. cursory' review of the attached documents and the cases cited above suggests that a good deal of effort, and perhaps significant expense, will result for CCLC if it pursues its Revised Contention 4.

This same set of. circumstances arose in Duke Power Company (Catawba Nuclear Station, Units 1 and 2) , LBP-82-17, 15 NRC 566 (1982). There, the intervenor alleged in general terms that the applicant had not developed and demonstrated an adequate security plan. The Licensing Board acknowledged that the contention was not specific, but it recognized that the intervenor could not reasonably be required to advance specific contentions about the security plan because he had never seen it. The Board disposed of the matter this way:

We could now find that disclosure of the '

a plans is 'necessary to a proper decision in the proceeding.' . . . However, we are uncertain t whether (the intervenor] is fully aware of the procedural complexities and cost associated with pursuing security plan issues under the Commission's case law and new regulations. For 1

one thing, we would condition a disclosure order c on (the intervenor's] having obtained the ser-vices of a qualified security plan expert.

l Beyond that, access would be conditioned as to time, place, note-taking, and the like. A copy of the protective order entered in the Diablo I

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s Canyon' case is enclosed as illustrative.of these

-restrictions . . . .

-A~ logical next: step, then,'is for [the intervenor] to consider the matter further and' inform.us,.within_ ten days of receipt of this

. Order, whether it wishes:to gain access to the Cawtaba' security plan, subject to the kinds of conditions we have indicated. If it wishes to proceed, we will then hear from the other parties.

and consider what further procedures are appro-priate. (jgd. at 590.)

. Vepco believes that this is the disposition the Board should make of Revised Contention 4 in this proceeding.

CCLC.may decide to go forward with its' Revised Contention

4. On the other hand it may be that CCLC simply seeks assur-i ance.that a complete physical protection system is in fact in place before shipping begins; in that event a solution a

4 well short of time-consuming and expensive litigation may

be possible.

Respectfully submitted, 4

VIRGINIA ELECTRIC AND POWER COMPANY i

By /s/ Michael W. Maupin Michael W. Maupin, Counsel-

, of Counsel i

i Michael W. Maupin 4

Marcia R. Gelman HUNTON & WILLIAMS

}: P. O.-Box 1535

' Richmond, Virginia 23212

Dated: August 27, 1984 l l

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CERTIFICATE OF SERVICE I hereby certify that I have this day served Applicant's Response to CCLC's Revised Contention 4 upon each of the persons named below by depositing a copy in the United States mail, properly stamped and addressed to him at the address set out with his name:

Secretary U.S. Nuclear Regulatory Commission-Washington, D.C. 20555 Attention: Chief Docketing and Service Section Sheldon J. Wolfe, Chairman Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Dr. Jerry Kline Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Dr. George A. Ferguson School of Engineering Iloward University 2300 5th Street Washington, D.C. 20059 Henry J. McGurren, Esq.

U.S. Nuclear Regulatory Commission Washington, D.C. 20555 James B. Dougherty, Esq.

3045 Porter Street, NW Washington, D.C. 20008 Atcmic Safety and Licensing Board Panel )

U.S. Nuclear Regulatory Commission Washington, D.C. 20555 i  ?

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, .m Atomic' Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 By-/s/ Michael W. Maupin Michael W. Maupin, Counsel for Virginia Electric and Power Company.

Dated: August 27, 1984 4

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Attachmtnt 1

"' - very APPENDIX and to litigation.

m prefact.d with UNITED STATES OF AMERICA s security plan is NUCLEAR REGULATORY COMMISSION that his view of hanged from that ATOMIC SAFETY AND LICENSING APPEAL BOARD rrence in ALAB.

ions and prece.

' Richard S. Satsmee, Chairman learly drawn, we Dr. W. Reed Johnson plans should not Thomme S. Moore inding our view in the Matter of Docket No. 50 2750L 21ations, if by the 50 323OL -

notion for a stay

'an access to the PACIFIC GAS AND ELECTRIC l

of business the COMPANY iion or we direct (Diablo @ Nuclear Power e given access to Plant, Unite 1 and 2) '

th our protective d PHOTECTIVE ORDER ON SECURITY PLAN INFORMATION

! umber of other

'e have had an Counsel and witnesses for Intervenor San Luis Obispo Mothers or I

f tha sanised Peace (Intervenor) who have executed an Affidavit of Non-Disclosure, :s l ue a subsequent the form attached, shall be permitted access to "protec'.ed information'"

a) for objections upon the following conditions:

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mended conten- 1. Only Intervenor's counsel and Intervenor's experts who have becc qualified in accordance with the requirements of our decision in Pacifc Gas ..

and Elecinc Company (Diablo Canyon Nuclear Power Plant, Units I and 2),

ALAB-410,5 NRC 1398 (1977), and our Order of February 25,1980 in this l "

BOARD proceeding, may have access to protected information on a "need to know" basis.

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2. Counsel and experts who receive any protected information ,

l d Board (including transenpts of in camera heanngs, filed testimony or any other l doc'iment that reveals protected information) shall maintam its confiden- l ,,

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l ihould be rued by tiality as required by the annexed Affidavit of Non-Disclosure, the terms of has on which are hereby incorporated into this protective order. i

'As used in this order, " protected informauon" has the same -a'"5 as ud in the Amdad of Non Disclosure, annexed hereto.

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3. Counsel and experts who receive any protective information shau g it solely for the purpose of participation in matters directly pertamang g this security plan beanng and any further prMay in this case directly involymg security matters, and for no other purposes,

4. p Counsel and experts shall keep a record of all protected information in their possession and shall account for and deliver that information to the Commie =on official designated by this Board in accordance with the l' Affidavit of Non-Disclosure that they have executed.

5. 1. As used in this M

' In addition to the requirements specified in the Affidavit of Non-Disclosure, all papers filed in this prMag (including testimony) that (a)"Protectedinfo a contain any protected information shall be segregated and: for the licensee's Dit or (2) any informati.

(a) served on lead counsel and the members of *. hit Board onlyt (b) served in a heavy, opaque inner envelope wanng the name of the (b) An "authorizec P.egulatory Commic addressee and the statement " PRIVATE. *.'O BE OPENED BY a person who, at il ADDRESSEE ONLY." Addressees shall take aJ n=aary precautions Appeal Board (" Api to ensure that they alone will open envelopes so n 'arked.

6. or (3) a penon em; Counsel, experts or any other individual whc has reason to suspect licensee, and auth<

that documents containing protected information may have been lost or regulations to have a misplaced (for example, because an expected paper has not been received) 2. I shall not dist or that protected information has otherwise become available to unautho.

authorized pe.non, unlet ,

rized persons shall notify this Board promptly of those suspicions and the reasons for them. the public recdrd of this It is so ORDERED. in written form (includi-filed testimony or any d that it remains at all tin FOR THE APPEAL BOARD not disclosed to anyone

3. I will not rept Richard S. Salzman, Qiairman without the Appeal B4 possess protected inforl Done at San Luis Obispo, California, until further order of th '

this 3rd day of April 1980. l 4. I shall simdarly:

copies of protected int protected informauo l (a) my use of the pq Francisco to be nq (b) I will keep andJ

, j by intervenors at consultation with at all times at the s i' (c) Any secrew supervision will be 1

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2 tion shau (conunued) case 4,tly AFFIDAVIT OF NON.DISCt.OSURE 1 informatig mation to the  : being duly sworn, state:

I, ice with the

1. As used in this Affidavit of Non-Disclosure, Evit of Non. (a) " Protected infonnation" is (1) any form of the physical security plan

.imony) that for the licensee's Diablo Canyon Nuclear Power Plant, Units I and 2; or (2) any information dealing with or describing details of that plan.

aly. (b) An " authorized person" is (1) an employee of the Nuclear name of the Re8ulatory Commmion entitled to access to protected information; (2)

'ENED By a Person who, at the indtation of the Atomic Safety and Licensing Precautions Appeal Board (" Appeal Board"), has .:xecuted a copy of this affidavit; r (3)

• Persa employed by Pacif.c Gas and Electnc Company, the n to suspect licensee, and authorized by it in accordance with Comminaion

• n lo:t or regulations .o have access to protected information.

en received) 2. I shall not disclose protected information to anyone except an to unautho. authmzed pemn, unless that information has previously been disclosed in i ons end the the public record of this proceeding. I wtll safeguard protected information in wntten form (including any portions of transcripts ofin camera heanngs, filed testimony or any other documents that contain such information), so 8 2 cm8 5 at a u"*8 un *f

• I a au Pe m nand b

,RD not disclosed to anyone e!se.

3. I will not reproduce any protected informatian by any means without the Appeal Board's express approval or direction. So long n I man possess protected informanon, I shall continue to take these precautions until further order of tne Appeal Board.

4. I shall similarly safeguard and hold in confidence any data, notes, or copies of protected information and all other papert which contain any ,

protected information by means of the following:

(a) my use of the protected information will be made at a facility in San '

Francisco to be made available by Pactfic Gas and Electric Company. '

(b) I will keep and safeguard all such matenal in a safe to be obtained by intervenors at Pacific Gas and Electnc Company's expense, after consultation with Pacific Gas and Electric Company and to be located at all times at the above designated location.

(c) Any secretarial work performed at my request or under my supervision will be performed at the above location by one secretary of 799

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'intervenor's deataation. Interveners shall fhrnish Paci Company, the Board and Staff an appropnate resu.ne of the secretary's twiground and exponence.

(d) Necessary typmg and reproduction equipment will be furnished by Pacific Gas and Electnc Company.

Ayo (e) All intervenor miliny involving protected information shall be 5.

made from the facility furnished by Pacific Gas and Electric Company.

If I prepare papers contauung protected information in order to participate in further prMap in this case, I will assure that any secretary or other individual who riust receive protected information in order to help me prepare those papers has executed an affidavit like this one and has agreed to abide by its terms. Copies of uny such affidavit will k in the Matte fded with the Appeal Board before I reveal any pmtected information to any such person. l

6. i I shall use protected information only for the purpose of preparation

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for this proceeding or any further proceedags in this case dealing with seedty plan issues, and for no other purpose j LIGHT Cl

7. ALLEGHE I shall keep a record of all protected inforrr. tion 'a my possession, COOPEW including any copies of that information made by or for me. At the (Suequehan conclusion of this proceeding, I shall account to the Appeal Board or to a ,

Commmion employee designated by that Board for all the papers or other '

Station, q matenals containing protected information in my possession and deliver Acting o them as provided herein. When I have finished using the protected ,

of an intern information they contain, but in no event later than the conclusion of this proceeding, I shall deliver those papers and materials to the Appeal Board Board disco (or to a Commission employee designated by the Board), together with all parues to as) mooted the 1 notes and data which contain protected information for safekeeping dunng the lifetime of the plant. '

8. PULES OJ I make this agreement with the following understandings: (a) I do not waive a y objections that any other person may have to execute an afridavit sus i as this one: (b) I will not publicly discuss or d.sclose any Interlocul protected information that I receive by any means whatsoever. NRC Ruls review ("d Subsenbed and sworn to before me this day of Apn!,1980. granted spa (a) threated irreparable !

affects the manner. P Station, UE 760 i

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