ML20199K485

NRC Staff Response to State of UT Motion for Protective Order.* Staff Does Not Oppose State Motion for Entry of Protective Order,If Appropriate Conditions Governing Disclosure of Safeguards Info Noted.W/Certificate of Svc

ML20199K485
Person / Time
Site:	07200022
Issue date:	11/19/1997
From:	Marco C, Sherwin Turk NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Atomic Safety and Licensing Board Panel
References
CON-#497-18625 ISFSI, NUDOCS 9712010137
Download: ML20199K485 (8)

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USNRC November 19,1997 W NOV 19 P4 :55 UNITED STATES OF AMERICA-NUCLEAR REGULATORY COMMISSION OFHCC DF CEC,m C; sa s, --

BEFORE T11E ATOMIC SAFETY AND LICENSING BOhRD 6

In the Matter of )

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PRIVATE FUEL STORAGE, LLC. ) Docket No. 72-22-ISFSI

)

(Incep:ndent Spent )

Fuel Storage Installation) )

NRC STAFF'S RESPONSE TO STATE OF UTAH'S MOTION FOR PROTECTIVE OLDER INTRODUCTION On November 14,1997, the State of Utah filed a motion for a protective order, to enable its attorneys and other specified (and unspecified) persons to see, for the purpose of framing contentions, the proposed physical security plan for the independent spent fuel storage installation (ISFSI) proposed to be built and operated by Private Fuel Storage, LLC (the

" Applicant").1 By Order of November 17, 1997, the Licensing Board directed the Applicant and the NRC Staff (" Staff") to file responses to the State's Motion on or before November 19, 1997, and to include therein an estimate of how long it would take (1) to submit a proposed protective order for consideration by the Board, and (2) for the persons named in the State's

' " State of Utah's Motion for a Protective Order to Review and File Contentions on the Applicant's Physical Security Plan" (" Motion"), dated November 14, 1997.

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' Motion to gain access to the f.ecurity plan after agreeing to abide by the terms of a protective

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The Staff herewith files its response to the State's Motion and the questions posed by the l Licensing Board. For the reasons set forth below, the Staff does not_ oppose the State's request i that a protective order be adopted in this proceeding to afford access to tae Applicant's physical

!' - security plan to persons who have a need to know the details of that plan, subject to the

-inclusion of appropriate provisions. to restrict the unauthorized disclosure of safeguards

information contained therein or related thereto.5 DISCUSSION Pursuant to 10 C.F.R. l 73.21, safeguards infonnation contained in or related to an applicant's or licensee's physical security plan may only be disclosed to persons who have a i

need to know that information and who f01 within one of the categories of persons listed in I 10 C.F.R. s 73.21(c)(1). Among such persons with a need to know, to whom disclosure may -

be made, are " individual [s] to whom disclosure is ordered pursuant to [10 C.F.R.] i 2.744(e)."

10 C.F.R. i 73.21(c)(1)(vi).

3 The Staff believes that the entry of a protective order is appropriate in this proceeding, in light of the State's expressed interest in filing contentions related to the Applicant's physical a-4.

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See " Order (Responses to Motion for Protective Order)," dated November 17, 1997, -

I at 1-2.

3 Indeed,'the State filed its Motion at the suggestion of Staff Counsel, upon consideration -

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of the expressed desire by Denise Chancellor, an Assistant Attorney General for the State of Utah, to review the security plan for the purpose of filing contentions in this proceeding. See

-letter from Sherwin E. Turk (NRC) to Denise Chancellor (Utah), dated November 13, 1997 (Motion at 1, and Attachment 3 thereto).

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= security plan, and the likelihood that it will be able to identify an expert qualified to evaluate; that plan and to' testify concerning the adequacy thereof,C Such protective orders have been -

issued or found to be appropriate--in'other NRC adjudicatory proceedings related to an 2

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applicant's physical security plan, subject to the requirement, inter alia, that a qualified expert '

be identified to evaluate and testify concerning the plan. See, e.g., Pacipe Gas and Electric Co.

(Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-600,12 NRC 3,' 14 (1980); Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), LBP-8216,15 NRC 566,590 (1982).s

While the Staff does not oppose the State's Motion in principle, we note that one aspect I of the State's Motion is somewhat problematic. The Stat requests that access to the security _

plan be afforded not only to the Director of the Utah Radiation Control Division (Mr. Sinclair, who already has a copy of the plan)' and to the State's lead attorney in this proceeding (Ms. Chancellor), but also seeks disclos'are to three additional State officials or employees i

having policy and/or technical responsibilities, two additional State attorneys, .ux! an unspecified s

• Although the State has not yet designated the person (s) who would appear as experts on its behalf, the Staff notes that Mr. William.Sinclair, Director of the Utah Division of Radiation Control, is already in possession of the plan as an official State representative, in p connection with his duties apart from this litigation. See letter from Denise Chancellor (Utah) to Sherwin Turk (NRC), dated November 8,1997 (Motion,- Attachment 2). It is unclear, however, whether Mr. Sinclair is the person who would be designated to appear as an expert on behalf of the State, or whether he is qualified to appear as an expert on security plan' issues.

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'Ihe Staff notes that, pursuant to 10 C.F.R. ' 2.744(g), a request for protective order shall not "be made or entertained before the matters in controversy lutve been identified by the Commission or the presiding officer . . . except upon leave of the presiding . officer for good cause shown." Inasmuch as the filing of admissible contentions under 10 C.F.R. 2.714(b) could s require that a petitioner or party review the security plan prior to filing its contentions (see

- Motion at 2), the Licensing Board could arguably find that " good cause" exists to support

< issuance of a protective order prior to ruling on contentions. See, e.g., Catawba,' supra,

15 NRC at 590.

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number of secretarial and support staff (Motion, at 3). The Staff submits that disclosure of the security plan to such a large number of individuals increases the risk of unauthorized disclosure.  ;

and should therefore be avoided: and that any person to whom disclosure is sought must be

'shown to have a need to know the information in question. To this end, the State should be required to Jxplain why individuals having apparently duplicative roles, or duties of a " policy" +

- nature, need to have access to the safeguards information contained in the security plan, where .

access by

• single expert, one secretary, and one attorney would otherwise' appear to be 3

sufficient. .

1-Finally, the Staff notes that the State proposes to file contentions on the security plan - ,

within two weeks after issuance of a protective order (Motion at 3). The Staff does not oppose the State's filing of such contentions within the suggested period of time.

Response to Board Ouestions In its Order of November 17, 1997, the Licensing Board inquired, first, how long it would take for counsel to prepare a proposed protective order. In this regard, Staff Counsel has commenced a review of the protective orders issued in other proceedings, in preparation for filing a proposed form of order. -Staff Counsel expects that approximately one week will be

. required to complete that draft and forward it to other parties and/or the Licensing Board (alternatively, the Applicant, the State, or other interested petitioners could draft a proposed form of order for consideration by other parties). Other parties may then be expected to require up to one week to review that draft and propose any changes thereto; and a final proposed order i (or at:ernative versions thereof) could be submitted to the Licensing Board within a few days

_ thereafter, following the completion of discussions among interested parties. In sum,-the Staff- l 1

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< expects that a proposed order could be submitted for consideration by the Board within a period -

_ of two or ,hree weeks.

. In its Order, the Licensing Board further inquired how long it may.be expected for thei

. persons .amed in the State's Motion to gain access to the security plan after agreeing to abide 1

by the terms of a protective order. 'Ihe Staff is not aware of any reason why such access should require more than the limited time required (on the order of several days) for the Applicant to

- photocopy and ' transrait.' the ~ security plan to those persons, using . appropriate means of

transmission, following those persons' execution of the necessary affidavit of non-disclosure. ,

. In this regard, the Staff notes that the Applicant's physical security plan contains safeguards ,

information,' rather than national security information or restricted data, 'and that personal

. security clearances are therefore not required.8

• " Safeguards Information" is defined in 10 C.F.R. i 73.2 as:

(I]nformation not otherwise classified as National Security Information or Restricted Data which specifically identifies a licensee's or applicant's detailed (1) security measures for the physical prctection of special nuclear material, or (2) security measures for the physical protection and location of certain plant equipment vital to the safety of production or utilization facilities.

Cf. section 147 of the Atomic Energy Act of 1954, as amended ("AEA"),42 U.S.C. I 2167.

' Where access is sought to " national security information" or " restricted data," security clearances are required in accordance with 10 C.F.R. Part 95. See 10 C.F.R. i 95.35(a);

cf. AEA i 141, er seq., 42 U.S.C. f 2161, et seg.

Although not applicable here, the Staff notes that when safeguards information is disclosed by a licensee who is authorized to operate a nuclear power reactor, access is restricted to those persons who have been fingerprinted in accordance with the Commicion's regulations.

!. -See 10 C.F.R. I 73.57; cf.'section 149 of the AEA,42 U.S.C. f 2169. However, even in that circumstance, fingerprinting is not required if the disclosure to those persons is made pursuant to a protective order issued under 10 C.F.R. I 2.744(e). See 10 C.F.R. I 73.57(b)(2)(ii).

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6-C.ONCLUSION The Staff does not oppose the State's motion for the entry of a protective order, if-l appropriate conditions are established governing the disclosure of safeguards infonnation contained in or related to the Applicant's physical security plan.

Respectfully submitted, O{

Sherwin E. Turk Catherine L. Marco Counsel for NRC Staff Dated at Rockville, Maryland this 19th day of November 1997 4

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iDOCKETED

-UNITED' STATES OF AMERICA NUCLEAR REGULATORY: COMMISSION:

W E' 19: P4 55 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD OFFIC: OF 4EORDARY-In the Matter of - -

-)- - RULEMAKW3$ AND

) --ADJUD:CAlrN3 STAFF PRIVATE FUEL STORAGE, LLC ) Docket No. 72-22 ISFSI

)

(Independent Spent )

Fuel Storage Installation) )

n

,- CERTIFICATE OF SERVICE .

I hereby certify that copies of "NRC STAFF'S RESPONSE TO STATE OF UTAH'S MOTION FOR PROTECTIVE ORDER" in the above captioned proceeding have been served on the following through deposit in the Nuclear Regulatory Conunission's

. internal mail system, or by deposit in the United States mail, first class, as indicated by an asterisk, with copies by electronic mail as indicated, this 19 h day of i -November,1997:

Office of the Secretary G. Paul Bollwerk, III, Chairman ATTN: Rulemakings and Adjudications Administrative Judge Staff Atomic Safety and Licensing Board -

' U.S. Nuclear Regulatory Commission . U.S. Nuclear Regulatory Commission 1 Washington,- DC 20555 Washington, DC 20555 (E-mail copy to GPB@NRC. GOV)

Dr. Peter S. Lam Administrative Judge. Dr. Jerry R. Kline Atomic Safety and Licensing Board Administrative Judge U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Washington, DC 20555 U.S. Nuclear Regulatory Commission (E-mail copy to PSL@NRC. GOV) Washington, DC 20555 (E-mail copy to JRK2@NRC. GOV) 1  : James M. Cutchin, V i: Atomic Safety and Licensing Board Atomic Safety and Licensing Board

} U.S. Nuclear Regulatory Commission lanel Washington, DC 20555 U.S. Nuclear Regulatory Commission J(by E-mail to JMC3@NRC. GOV) Washington, DC 20555 -

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i Office of the Commission Appellate Jean Belille, Esq.*

Adjudication land and Water Fund of the Rockies Mail Stop: 16 G 15 OWFN 2260 Baseline Road, Suite 200  ;

U.S. Nuclear Regulatory Commission Boulder, CO 80302  ;

Washington, DC 20555 (E mail copy to landwater@lawfund.org)  !

l Denise Chancellar. Esq.* Danny Quintana, Esq,* . -

Fred O. rielson, Esq. Danny Quintana & Associates, P.C.  :

Utah Attorney General's Office 50 West Broadway i 160 East 300 South,5th Floor . Fourth Floor .

P.O. Box 140873 Salt Lake City, UT 84101 Salt Lake City, U1 84114-0873 (E mail copy to quintana (E mail copy to dchancel@ State.UT.US) @Xmission.com)

Connie Nakahara Esq

• Clayton J. Parr, Esq.*

4 Utah Dep't of Environmental Quality KIMBALL, PARR, WADDOUPS, 168 North 1950 West BROWN & GEE P. O. Box 144810 185 S. State St., Suite 1300 Salt Lake City, UT 84114-4810 P.O. Box 11019 (E mail copy to enakahar@ state.UT US) Salt Lake City, UT 84147 0019 (E mail copy to CJP@Kimballparr,com)

Jay E. Silberg, Esq.*

SilAW, PITTMAN, PO1TS & John Paul Kenredy, Sr., Esq.*

TROWBRIDGE 1385 Yale Ave.

2300 N Street, N.W- Salt Lake City, UT 84105 i Washington, DC 20037 8007 (E mail copy to john @kennedys.org)

(E-mail copy to jay _silberg

@shawpittman.com)

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k w I Sherwin E. Turk Counsel for NRC Staff E