ML20199K692

Memorandum & Order (Ruling on State of Utah Motion for Protective Order).* Board Grants State of Utah Motion for Protective Order & Request to Extend Time for Filing Security Plan.W/Certificate of Svc.Served on 971121

ML20199K692
Person / Time
Site:	07200022
Issue date:	11/21/1997
From:	Bollwerk G Atomic Safety and Licensing Board Panel
To:	UTAH, STATE OF
References
CON-#497-18634 97-732-02-ISFSI, 97-732-2-ISFSI, ISFSI, NUDOCS 9712010183
Download: ML20199K692 (10)

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{ )Q3f UNITED STATES OF AMERICA 00CKETED NUCLEAR REGULATORY COMMISSION USHRC:

ATOMIC SAFETY AND LICENSING BOARD 7 g, g ; q g Before Administrative Judges:

OFFICE Oc SECRI 1/6Y-

-G.. Paul Bollwerk, III, Chairman RULEl# KINGS IND -

Dr. Jerry R. Kline ADJUDICAHONS STAFF Dr. Peter S. Lam In the Matter of l Docket No. 72-22-ISFSI PRIVATE FUEL STORAGE, L.L.C. ASLBP No. 97-732-02-ISFSI (Independent Spent Fuel- November 21, 1997 Storage Installation)

SERVED 11012 f 1991 MEMORANDUM AND ORDER (Ruling on State of Utah Mo". ion for Protective Order)

As part of its application for the proposed Skull Valley, Utah independent spent fuul storage installation (ISFSI), applicant Private Fuel Storage, L.L.C. (PFS),

submitted a physical security plan. Egg 10 C.F.R.

S 72.24 (o) . Because that plan is considered to contain 10 C.F.R. Part 73 " safeguards information," it has not been publicly disclosed. Egg id. S 73. 21 (c) , On November 14, 1997, petitioner State of Utah (State) filed a motion requesting that the Licensing Board. issue a protective order pursuant to 10 C.F.R. S 2.744 (e) that would permit State legal,. scientific /t.echnical, and administrative personnel to have access to the PFS security plan. The State also asks for,an extension of the existing November 24, 1997 deadline for filing intervention petition supplements to permit it fDk kD 22 -*' ll C PDR ~

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additional time to prepare contentions regarding the security plan once it has access to that plan via the protective order. Sag (State's) Motion for a Protective Order to Review and File Contentions on the Applicant's Physical Security Plan (Nov. 14, 1997) [ hereinafter State Motion]. Both PFS and the NRC staff have indicated they have no objection to the State's protective order request alth.> ugh, as is detailed below, they do express reservations about certain of the State personnel for whom plan access is requested.

Subject to the conditions u s forth below, the Board orants the State's motion for a protective order and its request to extend the time for filing security plan-related contentions.

A. PFS and Staff Positions Although all participants were afforded an opportunity to address the State's protective order request, agg Licensing Board Order (Nov. 17, 1997) at 1 (unpublished),

only applicant PFS and the staff chose to respond. In its November 19, 1997 answer to the State's motion, PFS declares it does not oppose the motion for a protective order, although it asserts that (1) not all the individuals the State has requested be covered by the protective order are eligible under the terms of section 2.744 (e) as it covers

" qualified witnesses and counsel," and (2) the State's request to include unnamed " secretarial or other support"

personnni under-the protective _ order should be rejected in favor of naming particular individuals. PFS also asks that plan access for certain additional personnel-in its counsel's Washington, D.C. office be afforded under any protective order that is issued. Sag Applicant's Response to State of Utah's Motion for Protective Order to Raview and File Contentions on the Applicant's Physical Security Plan (Nov. 19, 1997) at 1-2.

In its respon'se filed the same date, the NRC staff likewise does not oppose Board issuance of a protective order, with the caveat that scrutiny should be given to the number of individuals dus State wishes to designate. The staff also states that it has no objection to extending the current November 24, 1997 deadline for filing intervention petition supplements relative to any security plan-related contentions. Egg NRC Staff's Response to State of Utah's Motion for Protective Order (Nov. 19, 1997) at 2-4

[ hereinafter Staff Response).

B. Licensing Board Determination The Board agrees that permitting the State to have access to the PFS physical security plan under a protective order is appropriate. Because an application is a primary source of information for formulating contentions to contest a requested licensing action, the fact the PFS plan is not publicly available with other portions of its application for the Skull Valley ISFSI seemingly creates the proverbial

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• Catch'22" for_ an _intervenor attempting to challenge that portion of the application. Egg Duke Power'Co. (Catawba Nuclear Station, Units 1 and 2), LBP-82-16, 15 NRC 566, 589-90 (1982).

Thus, whether pursuant to the " good cause" provision of section 2.744 (g) ,2 or the Board's general authority _under section 2.718 to conduct a fair and impartial hearing, we conclude that the State should have access to the PFS security plan so long as it agreec to abide by the provisions of an appropriate protective order. Further, as the staff has recognized, the State should have an opportunity to review the plan prior to filing any contentions on the adequacy of facility physical security under the plan.

Accordingly, taking into account the ti..e estimates provided by the staff for drafting a protective order and gaining access to the security plan once the order is effective, agg Staff Response at 4-5, we direct the following:

2 Section 2.744 (g) of 10 C.F.R. states:

No request (for disclosure of agency records or documents) shall be made or entertained before the matters in controversy have been identified by the Commission or the presiding officer, or after the beginning of the prehenring conference held pursuant to S 2.752 except upon leave of the presiding officer for good'cause shown.

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> 1. Precaration and Submission of' Proposed Protr.ctive. I order.- Staff counsel has indicated the staff currently is revi~ewi ng protective ordersiissued injother proceedings withe an_ eye toward preparing a proposed order.- As the

- participant likely to have the most experience and expertise concerning the content of such a protective order, the Board

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requests that the staff continue to take the lead in this-regard'and prepare and circulate a proposed protective order cmong the interested participants.- After receiving comments -

- from those participants, a proposed protective order should be provided.to the Board on or before Fridav. December 12, 1997.

2. Desionation of Personnel-Authorized to Have Access to the PFS Security Plan. The Board agrees with the staff .

and PFS that, at this juncture, access to the PFS security plan should be limited to those legal, scientific / technical, and administrative personnel who, by reason of their responsibilities, expertise, and experience, will be directly involved in preparing or responding to any State contentions regarding-the plan. The Board also agrees that those individuals should be named specifically in the protective order.

To-this-;end, the Board requests that both the State and PFS review the personnel they wish-to have designated to have-access to_the plan to ensure-each individual they have proposed meets these criteria. They should then seek to 1.

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reach an agreement, along with the staff, about the personnel to be designated. If PFS, the State, and the staff are unable to agree on the personnel to'be designated in the protective order, on or before Wednesday, December 3, 1997, any remaining disputes about appropriate designation of personnel should be brought to the Board's attention in a pleading filed by the participant sponsoring the person or persons at issue.

In that filing, the sponsoring participant should provide a detailed justification supporting access designation for each individual at issue, including a resume or other summary of the person's expertise and experience as it relates to the PFS security plan and the task of drafting or responding to any State contentions regarding the plan.

Responses to these pleadings shall be filed on or before Wednesday, December 10, 1997.

Also in this regard, we note that if security plan-related contentions are admitted into this proceeding, the Board will entertain participant requests to substitute

-or add other individuals to the list of designated personnel based on those individuals' need for security plan access tc aid _in further litigation regarding'the merits of the contentions.

3. Protective Order Contents. In drafting the proposed protective order, besides designating the l particular individuals who will have access to the security l

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planb the participantsEshould, among other. things, l'nc1'ude "U provisions outlining _(1)-the methods for transferring pleadings and-other-litigation documents that contain security plan-related nonpublic-information,. egg 10 C.F.R.-

. 5 73.21(g); (2) . any restrictions on photocopylu,1, ,

notetaking, and' data / word processing relative to'the security plan, gag.id. S 73.21(f), (h); and . (3) procedures-for accounting for any safeguards information disclosed.

under the protective order and for disposing of that information ct the conclusion of this proceeding, swst id.

, S 73.21(f).

4. Schedule-for'Filina Contentions Recardina the PFS Security Plan. ~ As requested by the State, the existing-deadline for filing contentions regarding the PFS security-plan is hereby susoended pending further action by the Board. With the State's request for a two-week contention drafting period in_ mind, agg State Motion at 3, the Board will establish a new schedule for filing security-plan-related' contentions and for responding to those contentions when it issues;the protective order granting access to the plan. It is the Board's intent that the revised schedule regarding those contentions will mandate the filing of contentions and any responses before the prehearing conference now planned for the-week of January 26, 1998..--

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5. Service of Filinos.- Finally, the filings required:

or permitted'.under paragraphs B.1'and-B.2'above should-be-r served"on the Board, the Office.of-the Secretary, and'- l counsel for the other participants by facsimile transmission,-e-mail, or other means that will ensure receipt.byfclose of business (4 :30 p.m. EST) on the day of; ,

-filing, agg Licensing Board Memorandum and. order.(Initial ,

i Prehearing Order) (Sept..23, 1997) at 5-6 (unpublished) ;

Licensing Board Memorandum and Order (Additional'. Guidance'on Service Procedures) (Nov.19, 1997) (unpublished). ,

It is su ORDERED.

FOR THE' ATOMIC SAFETY AND LICENSING BOARD'

h. J6 kJ,S G. Paul Bollwerk, III ADMINISTRATIVE JUDGE Rockville, Maryland November 21, 1997' f

' Copies of this. memorandum and order were sent this

-date to counsel for the. applicant'PFS, and.to counsel,for

_. petitioners Skull' Valley Band of Goshute-Indians, Ohngo. ~

Gaudadeh Devia;.ConfederatedLTribes of'the Goshute Reservationcand David.Pete, Castle-Rock Land and Livestock, L;C.,_et al., and.the State by Internet e-mail-transmission; '

and to-counsel for the' staff by e-mail through the agency's wide-area'. network system.

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'. f UNITED STATES OF AMERICA' NUCLEAR REGULATORY COMMISSION

.In the natter of=

PRIVATE FUEL STORAGE, LLC Docket.No.(s)_72-22-ISFSI (Independent Spent Fuel: Storage Installation)-

CERTIFICATE OF SERVICE I hereby certify that' copies of the foregoing LB M&O (RULING... PROT. ORDER)-

have been served upon the following persons by U.S. mail, first class, except as otherwise noted and in accordance with the requirements of 10 CFR Sec. 2.712.

Administrative Judge

' Office of Commission Appellate G. Paul 3o11werk,-III, Chairman Adjudication Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Mail Stop - T-3 F23 Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555 o

Administrative Judge Administrative Judge Jerry R. Kline Peter'S Lam Atomic Safety and Licensing Board Atomic Safety and Licensing Board Mail Stop - T-3 F23- Mail Stop - T-3 F23

< U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Comission WashingtJn, DC 20555 Washington, DC 20555 Sherwin E. Turk, Esq.

Catherine L. Marco, Esq. Diane Curran, Esq.

Office of the General Counsel- Harmon, Curran & Spielberg Mail Stop 15 B18 2001 S Street, N.W., Suite 430 U.S. Nuclear Regulatory commission Washington,.DC 2000g Washington, DC 20555

-Denise Chancellor, Esq.

Assistant Attorney General Jay E. Silberg, Esq.

Utah Attorney 6,eneral's Office Shaw, Pittman, Potts and Trowbridge 160 East > 300 South, 5th Floor- 2300 N Street, NW.

P.O.~ Box 140873 . . Washington, DC 20037 Salt Lake City, UT 84114 9

. ~ ._.

Docket No.(s)72-22-ISFS!

LB M&O (RULING... PROT. ORDER)

John Paul ! Kennedy, Esq. Jean Belille, Esq.  !

Confederated Tribes of the Goshute ohngo Gaudadeh Devia Reservation and David Pete Land and Water Fund of the Rockies 1385 Yale Avenue 2260 Baseline Road, Suite 200 Salt Lake City, UT 84105 Boulder, CO 80302 Clayton J. Parr, Esq.

Castle Rock, et al. Danny Quintana, Esq.

Ximball, Parr, Waddoups, Brown & Gee Skull Valley Bar a of Goshute Indians 185 S. State St., Suite 1300 Danny Quintana & Assocs., P.C.

P.O. Box 11019 50 West Broadway, Fourth Floor Salt Lake City, UT 84147 Salt Lake city, UT _ 84101 Dated at Rockville, Md. this

?! day of November 1997 DTrice of the Secretary of the Fommission t