ML20236J974
| ML20236J974 | |
| Person / Time | |
|---|---|
| Site: | 07200022 |
| Issue date: | 07/07/1998 |
| From: | Bollwerk G Atomic Safety and Licensing Board Panel |
| To: | AFFILIATION NOT ASSIGNED, NRC OFFICE OF THE GENERAL COUNSEL (OGC), UTAH, STATE OF |
| Shared Package | |
| ML20236J976 | List: |
| References | |
| CON-#398-19285 97-732-02-ISFSI, 97-732-2-ISFSI, ISFSI, NUDOCS 9807090096 | |
| Download: ML20236J974 (3) | |
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,/f2F5-UNITED STATES OF AMERICA 00CKETED NUCLEAR REGULATORY COMMISSION USNRC ATOMIC SAFETY AND LICENSING BOARD 16 JL -7 A11 :28 Before Administrative Judges:
G. Paul Bollwerk, III, Chairman OFFC .? "FO o RULEN ' t. P Dr. Jerry R. Kline ADJUDY 4 6 iMF Dr. Peter S. Lam In the Matter of Docket No. 72-22-ISFSI PRIVATE FUEL STORAGE, L.L.C. ASLBP No. 97-732-02-ISFSI (Independent Spent Fuel July 7, 1998 Storage Installation)
SERVED JUI. - 7199 MEMORANDUM AND ORDER (Making Decision on Admissibility of Physical Security Plan Contentions Publicly Available)
By memorandum and order issued'Jun 29, 1998, the Licensing Board ruled on the admissibility of the i
contentions of intervenor State of Utah (State) challenging the adequacy of the physical security plan (PSP) submitted by applicant Private Fuel Storage, L.L.C. (PFS), for its i proposed Skull Valley, Utah independent spent fuel storage installation. See LBP-98-13, 47 NRC (June 29, 1998).
In a separate memorandum issued that date, the Board advised all the parties to this proceeding that it had crafted its June 29 decision to avoid using 10 C.F.R Part 73
" safeguards information" so the issuance could be publicly released, but nonetheless. was treating its ruling as confidential pending receipt from the PSP parties of their 9907090096 990707 PDR ADOCK 07200022 C PDR hlb 0 ;
J ,
views on whether the decision could be publicly released.
In a July 6, 1998 letter, the State, PSF, and the NRC staff advised the Board they have not identified any safeguards information in the June 29, 1998 decision and so have no objection to making that issuance publicly available.
Accordingly, included as Attachment A to this memorandum and order is a copy of LBP-98-13 as issued, which-shall be made part of the public record of this proceeding.
The published. version of this decision will ouit the
-designation " HANDLE AS SAFEGUARDS INFORMATION PENDING REVIEW" that is found on the bottom of each page.
It is so ORDERED.
FOR THE ATOMIC SAFETY AND LICENSING BOARD
- l c - JL & N iLL G. Paul Bollwerk, III ADMINISTRATIVE JUDGE Rockville, Maryland July 7, 1998
- Copies-of this memorandum and order and the accompanying attachment were sent this date to counsel for the applicant PFS, and to counsel for interveners Skull Valley Band of Goshute Indians, Ohngo Gaudadeh Devia, Confederated Tribes of.the Goshute Reservation, Castle Rock Land and Livestock, L.C./ Skull Valley Company, LTD., 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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l DDCKETED USNRC UNITED STATES OF AMERICA LBP-98-13 NUCLEAR REGULATORY COMMISSION 98 JUN 29 P2 :56 ATOMIC SAFETY AND LICENSING BOARD l Before Administrative Judges: OI; F. s. . . -
G. Paul Bollwerk, III, Chairman ADA; l Dr. Jerry R. Kline Dr. Peter S. Lam SERVED Ulm 2 91996 l
l l
In the Matter of Docket No. 72-22-ISFSI l PRlVATE FUEL STORAGE, L.L.C. ASLBP No. 97-732-02-ISFSI (Independent Spent Fuel June 29, 1998 l Storage Installation)
MEMORANDUM AND ORDER I
(Ru]' 19 on State of Utah Physical
.;curity Plan Contentions)
- Pending before the Licensing Board are nine contentions filed by intervenor State of Utah (State or Utah) regarding the adequacy of the physical security plan (PSP) filed by applicant Private Fuel Storage, L.L.C. (PFS), as part of its application under 10 C.F.R. Part 72 for authority to construct and operate an independent spent fuel storage installation (ISFSI) on the reservation of the Skull Valley Band of Goshute Indians (Skull Valley Band) in Skull Valley, )
l Utah. For the reasons set forth below, we find that (1) expert spons.;rship of the State's PSP contentions is not an '
l absolute prerequisite to their admission; and (2) only one l
of those contentions -- Security-C -- is admissible as it 1
raises the question '.hether the Tooele County sherif f's
, - - "'"EL: AS SAFEGU7aDE !?'FCFS"3NN lEhMTG REVIE'c l
1
office, the local law enforcement agency (LLEA) with which PFS has response arrangements, will provide a " timely" response to any unauthorized activities at the PFS facility.
I. BACKGROUND As we previously noted in LBP-98-7, 47 NRC 142, 160 (1998), shortly before the November 1997 deadline for submitting contentions in this proceeding the State sought a protective order to gain access to the applicant's PSP. The Board issued the requested protective order, which was necessary because the PSP contains " safeguards information" that is not subject to public disclosure under 10 C.F.R. Part 73, and established a separate filing schedule for any State PSP contentions. The contentions now at issue, designated Security-A through Security-I, were timely filed l by the State in early January 1998, and subsequently were the subjact of responses by PFS and the NRC staff. See LBP-98-7, 47 NRC at 161, 162; see also (State] Contentions ]
Security-A Through Security-I Based on Applicant's ;
Confidential Safeguards Security Plan (Jan 3, 1998) ,
[hereinaf ter State PSP Contentions] ; Applicant's Answer to l l
l
[ State) Contentions Security-A Through Security-I Based on ,
Applicant's Confidential Safeguards Security Plan (Jan. 20, 1998) [ hereinafter PFS PSP Contentions Response); NRC Staff's Response to [ State] Security Plan Contentions CHANDLE AS 6Ar w JAT.:C ~:: 1 c m w h a N SC REi1:2. --
1 l
l (Jan. 20, 1998) [ hereinafter Staff PSP Contentions l
Response). During a late January 1998 initial prehearing conference, to avoid closing the proceeding to the public for security reasons, the loard limited arguments from these parties on the PSP contentions to the issue of the expertise of the witness sponsoring the State's contentions. See Tr.
at 442-65. Thereafter, the Board permitted the State to make an additional reply filing on the substar.ce of those contentions' admissibility. See LBP-98-7, 47 NRC at 165-66; see also [ State) Reply to NRC Staff and Applicant's Responses to Utah's Security Plan Contentions Security-A Through Security-I (Feb. 11, 1998) [ hereinafter State PSP Contentions Reply).
Prior to any ruling by this Board on the admiss.hility of these nine contentions, the Chief Administrative Judge issued an order designating a separate Licensing Board with jurisdiction over PSP matters, including the admissibility of the State's nine contentions. See LBP-98-7, 47 NRC at 166. Subsequently, in ruling on the State's request for party status in this proceeding, this Board found the State had standing as of right and had submitted a number of admissible contentions concerning non-P3P matters. See id.
at 247-48. Following that ruling, and after consulting with the parties, the PSP Licensing Beard scheduled a prehearing conference for June 17, 1998, to hear oral argument on the WL uc. AS o C T_" c r . J Oii:W '" p Z,L a,a .x / : D' -
4 0
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admissibility of the State's PSP contentions. Applicant PFS and the staff, however, had objected to the Chief Administrative Judge's action establishing a second Board, and in a June 5, 1998 decision, the Commission reversed the Chief Administrative Judge's action. See CLI-98-7, 47 NRC __
(June 5, 1998). Consequently, the State's PSP contentions once again have come before us for a ruling on admissibility.
In a June 8, 1998 directive, we offered the State the c)portunity to make an oral presentation on the previously scheduled date concerning the admissibility of its PSP contentions. See Licensing Board Memorandum and Order (Request for Election Regarding Oral Argument on Security Plan Contentions) (June 8, 1998) (unpublished). The State accepted that offer and we conducted an in camera prehearing conference on June 17, 1998, at which the State, PFS, and the staff made presentations concerning the admissibility of the nine PSP contentions. See Tr. at S-1 to S-106.-
l l
- Citations to the transcript for the Board's June 17, 1998 in camera session have the designation "S "
Transcript citations without this prefix refer to public Board sessions.
- 72;L na anrzaun.% o t a r ucmi ma rzNDING Rh. Van N
)
II, ANALYSIS A. Standards for Admission of Contentions In LBP-98-7, 47 NRC at 178-81, we provided an extensive discussion of the standards that govern the admission of contentions in agency licensing adjudications. We will not repeat that exposition here. Instead, we simply note that the general requirements in 10 C.F.R. S 2. 714 (b) (2) (i) - (iii) mandate that a contention's sponsor provide (1) a brief explanation of the bases for the contention; ( 2 .) a concise statement of the alleged facts or expert opinion that will be relied on to prove the contention, together with the source references that will be relied on to establish those facts or opinion; and (3) sufficient information to show there is a genuine dispute with the applicant on a material issue of law or fact, which must include (a) references to I
the specific portions of the application (including the accompanying environmental and safety reports) that are disputed and the supporting reasons for the dispute, or (b) the identification of any purported failure of the l application to contain information on a relevant matter as required by law and reasons supporting the deficiency allegation. A contention that fails to meet any one of l
"?l::L nd ent counrwa 1NFORMATION rc.nuinu r c v A c.. ~ -
i l-L_____ _ _ _ _ _ . _ _ _ _ _ _ _ _ _ . _ . _ _ _ _ _ _ _ _ _ _ _ _ . _ . . _ _ _ . _ _ _ _ _ _ _ _ . . _ _ _ _ _ _ _ _ _ _ . . _ _ _ _ _ . _ _ _
l 4 O I
l these standards must be dismissed, as must a contention that, even if proven, would be of no consequence because it would not entitle a petitioner to any relief. Id.
S 2. 714 (d) (2 ) .
As we also noted in LBP-98-7, 47 NRC at 179-81, under the agency's existing case law interpreting these section 2.714 requirements, a number of more specific corollaries have developed regarding contention admissibility. Thus, a contention is subject to dismissal if it (1) improperly challenges applicable statutory l
l requirements, the agency's regulatory process, or its regulatory requirements; (2) seeks to raise matters outside the scope of the proceeding as defined by the notice of
(
hearing or opportunity for hearing; (3) lacks materiality; (4) lacks adequate factual information or expert opinion support; or (5) fails properly to challenge the licensing I application at issue.$
The Board's use of the conjunctive "and/or" in
! connection with its rulings on these PSP contentions and the
- non-PSP contentions filed by the State and the other
- petitioners is intended to reflect the fact that a failure l relative to any one of the requirements of section 2.714 (b) l is sufficient grounds for dismissal of a contention.
L 2
With regard to this last precept, an improperly based challenge to a license application includes one that is rooted in a misreading or misinterpretation of the license application. See Georgia Institute of Technoloav (Georgia Tech Research Reactor, Atlanta, Georgia), LBP-95-6, 41 NRC 281, 300, vacated in cart and remanded on other arounds, (continued. .)
N W O La r., ASEM:sLa 2... _ R. .es 2 4 G. r s. D .v u .sLil Eli --
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l B. Expert Support for the State's PSP Contentions DISCUSSION: PFS PSP Contentions Response at 2-6; State PSP Contentions Reply at 2-4; Tr. at 452-65.
RULINL : Before considering each of the State's nine PSP contentions against these standards, we must resolve an overarching issue regarding the factual information or ]
expert opinion needed to support an admissible PSP contention. Citing the language in the Licensing Board's decision in Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), LBP-82-51, 16 NRC 167, 177 (1982), that "an Intervenor must have a qualified expert and must submit to a protective order if he wishes to pursue a security plan contention," PFS asserts (1) a security plan contention can be admitted only if sponsored by an expert witness; and (2) the individual who has provided an affidavit supporting the State's contentions, Utah radiation control program head William J. Sinclair, is not a physical security expert. As a consequence, PFS declares, the State's PSP contentions l must be dismissed ab initio. See PFS PSP Contentions l l
Response at 2-6; Tr. at 455-57. Both the State and the staff disagree. The State asserts Mr. Sinclair's experience and training are sufficient to qualify him as an expert for 3(... continued)
CLI-95-10, 42 NRC 1, affirmed in part on other arounds, 42 NRC 111 (1995)
M NDT Pane r.M.INFOP A m, i E.m - ri / O' I
w____--_-_-________ . _ - . . - _ _ _ _ _ _ _ _ _ _ _ _ _ - _ _ . _ _ _ _ _ _ _ _ _ _ . _ - _ _ _ _ _ _ __ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
4
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the purposes of contention admissibility. See Tr.
at 452-55. In addition, both the State and the staff l
maintain that the issue of Mr. Sinclair's expertise is irrelevant to the degree there is documentary or other information sufficient to support a PSP contention's admission. See State PSP Contentions Reply at 2-4; Tr.
at 458-65.
In reviewing this matter, we conclude there are two distinct inquiries involved in intervenor PSP contention formulation: (1) whether to provide access to the security plan so the intervenor can use it to draw up its 5 contentions; and (2) what is the information -- documentary, expert opinion, or otherwise -- necessary to support the admission of the intervenor's proffered contentions. We also find the Catawba case cited by PFS goes only to the first question and, in this instance, providing Mr. Sinclair (and other designated State officials) with access to the applicant's PSP is consistent with that decision.
In Catawba, under the heading " Access to the Catawba Security Plan," the focus of the Board discussion cited by PFS was on whether an intervenor group would be allowed to review the facility PSP so the group could " pursue" specific security contentions in the case.' See LBP-82-51, 16 NRC 4
The Catawba Board had " conditionally" admitted a (continued. .)
x '" ':r '_ : Aa 2ACT 11.- ...)unRATION PEhuwa a n u. -
l e
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l at 176. The Board there required that the group obtain the i
services of a security expert and subject itself to a protective order as conditions of obtaining the plan so it could then " develop" more specific contentions. fee id.
The Catawba Board's " expert retention" condition t hus was directed at providing security plan access rather than assessing security plan contention adequacy and admissibility, an issue the Board did not even reach.
These conditions for facility security plan access are a prudent precaution in light of the potential sensitivity of the information in a security plan. Without those requirements, a Board would lack assurance that the individuals reviewing a plan on behalf of a petitioner both understand the need to afford the plan confidential treatment and are serious about formulating and pursuing contentions relating to the plan, as opposed to simply seeking access as a matter of curiosity.5 4 ( . . . conti..aed) security plan contention conditioned on the intervenor's complying with the Board's requirements for access to the plan, after which the intervenor was to have the opportunity to " develop specific contentions." LBP-82-51, 16 NRC at 176. Shortly thereafter, conditional admission of contentions for any reason was banned. See Duke Power Co.
(Catawba Nuclear Power Station, Units 1 and 2), ALAB-687, 16 NRC 460, 467 (1982), Ifv'd on other arounds, CLI-83-19, 17 NRC 1041 (1983).
In the Catawba case, by imposing these ccess requirements the Board discovered the petitioner was (continued. .)
""'9LE AS :: rxn"u&S : .. 2:'.AT ; C., ruw 729 --
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4 Here, the State has subjected itself to a Board-approved protective order governing its access to and disclosure of the information in the PFS security plan.
Moreover, fulfilling the Catawba Board's other precondition, for access purposes the State has provided the functional equivalent of a security plan " expert" with Mr. Sinclair.
As the designee of the Governor of the State of Utah under 10 C.F.R. S 73.21(c) (1) (iii) , Mr. Sinclair is one of the NRC-approved State officials with a "need to know" such that he has PFS security plan access. By accepting this designation, he becomes responsible for maintaining the requisite "information protection system" that will protect against unauthorized disclosures from the plan. See id.
S 73. 21 (a) . And there is no question about the seriousness of the State's interest in the PSP plan given its commitment, in the event Mr. Sinclair is found not to be a physical security " expert," to obtain such an expert for the litigation of any admitted contentions (or to withdraw those contentions). Tr. at 460-61, 463. We have no difficulty, therefore, in concluding that the State has provided the requisite. assurance of its commitment to protecting safeguards information and of its genuine concern about the 5( .. continued) unwilling to commit to giving appropriate treatment to safeguards information. See LBP-82-51, 16 NRC at 176.
2- "?E LE AC C7JECU7J1DE !""WWw Ph.NDING rEVE1c' -
4 .
- 11 adequacy of the applicant's PSP to meet the requirements for security plan access cutlined in Catawba.
Once having plan access, any contentions the State formulates are then subject to the same basis and specificity requirements as other contentions. Expert opinion support is no; required for a contention, at least as long as there is othe supporting information sufficient to provide the cunt 3ntion with an admissible basis. Thus, contrary to tne applicant's assertions, Mr. Sinclair's purported lack of physical security expertise would not be a basis for rejecting the State's PSP contentions out of hand.
Having found that Mr. Sinclair's credentials are sufficient to merit providing access to the PFS security plan, we also note that, on the basis of the record before us, the State has failed to establish he has the requisite knowledge, skill, training, education, or experience to be considered an expert on physical security matters. His education, training, and experience in environmental health and hazardous substances does not support a finding he has the necessary expertise in physical security matters. Nur does his NRC health physics training, his position and activities as Director of the State Division of Radiation Control, or his status as the Governor's designee for receiving the PFS security plan, see Tr. at 452-55, 160-63, provide him with the requisite credentials for designation
= .17-1'D M t o N : 'MU p ,twvma RE; 1. :w-- -
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as a physical security expert. Because his sponsorship of those contentions does not provide " expert" support relative to their admissibility, in assessing tne contentions below we must consider whether the other supporting information provided is sufficient to establish that the State's PSP contentions are admissible.
C. State Security Plan Contentions
- Security-A -- Security Force Staffing CONTENTION: The Applicant has failed to establish a detailed plan for security measures for physical protection of the proposed ISFSI as required by 10 C.F.R. S 72.180, including failure to demonstrate that it has adequate staffing capability to cope with or respond to safeguards contingency events.
DISCUSSION: State PSP Contentions at 2-3; PFS PSP Content ions Response at 7-14; Staff PSP Contentions Response at 10-12; State PSP Contentions Reply at 5-8; Tr. at S-38 to S-48.
6 Although the State, PFS, and staff filings regarding the PSP contentions have not been placed in the public record of this proceeding, the Board previously obtained the agreement of those parties that the language of the State's contentions do not include safeguards information so as to permit public disclosure of those contentions. See Licensing Board Memorandum and Order (Memorializing Prehearing Conference Directives) (June 18, 1998) at 2 n.1. 1 The Board likewise has attempted to oraft this memorandum I and order to avoid any discussion o'. safeguards information,
! thereby permitting this decision to become a public issuance in toto. Nonetheless, we initially are according it confidential treatment by providing it only to the PSP parties with the request that they advise us whether its public release would involve the disclosure of any protected safeguards information. See infra p. 24.
unyor r ne e n er~ - we w r_ s .g r p y r : n n . ,,.,,; -
l
,4 .
RULING: Inadmissible, in that (1) the contention and its basis regarding the adequacy of the number of security personnel at the PFS facility impermissible challenge the Commission's regulations and/or rulemaking related generic determinations, including the recently revised 10 C.F.R.
S 73.51(d), see 63 Fed. Reg. 26,955, 26,957, 26,959 (19 9 8 ) ;'
and/or lack adequate factual support; and (2) the contention and its basis regarding the availability of local housing for off-duty security personnel to supplement the on-duty security force impermissible challenge the Commission's regulations and/or rulemaking related generic determinations; lack adequate factual support; and/or fail properly to challenge the PFS application. See LBP-98-7, 47 NRC at 179, 180-81. Moreover, to the extent the State
. seeks to rely on the question of the cesignated LLEA's lack of jurisdiction and law enforcement authority on the skull Valley Band's reservation as a basis for this contention, that assertion lacks adequate legal or factual' support. See 1
id. at 180-81; see also infra p. 16.
1
' Although this revised rule will not become effective until November of this year, for the purpose of determining the admissibility of the State's PSP contentions, its adoption by the Commission gives it a regulatory force we cannot disregard. See Potomac Electric Power Co. (Douglas Point Nuclear Generating Station, Units 1 and 2), ALAB-218, 8 AEC 7 9, 85 (1974).
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4 s Security-B -- Equipment and Training Contention: The Applicant has not described the type or location of security equipment available to security force personnel, nor has the Applicant described adequate training for fixed site guards or armed response personnel.
DISCUSSION: State PSP Contentions at 3; PFS PSP "ontentions Response at 14-19; Staff PSP Contentions Pesponse at 12-13; State PSP Contentions Reply at 8-10; Tr.
at S-48 to S-54.
RULING: Inadmiss4ble, in that the contention and its supporting basis lack materiality; and/or lack adequate factual or expert opinion support in that the State has failed to make a sufficient showing the referenced requirements for security equipment and training for fixed site guards and armed response personnel under 10 C.F.R. Part 73, App. B., Criterion V.A, which generally do not apply to security force members at an off-site ISFSI, see 63 Fed. Reg. at 26,957, should be applied to the PFS facility. LBP-98-7, 47 NRC at 179-80, 180-81. Moreover, to the extent the State seeks to rely on the issue of the designated LLEA's lack of jurisdiction and law enforcement authority on the skull Valley Band's reservation as a basis for this contention, that assertion lacks adequate legal or factual support. See id. at 180-81; see also infra p. 16.
OJCLE EE E.' rE N"h D MJi v n.w A ub ernvinv .C!1D J --
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Se-urity C -- Local Law Enforcement Contention: The Applicant has not met the requirements of 10 C.F.R. Part 73, App. C, Contents of the Contingency Plan, Law Enforcement Assistance.
DISCUSSION: State PSP Contentions at 4-7; PFS PSP Contentions Response at 19-31; Staff PSP Contentions Response at 13-14; State PSP Contentions Reply at 10-14; Tr.
at S-7 to S-38.
RULING: Admissible as sufficient to establish a genuine material dispute adequate to warrant further inquiry in connection with its basis alleging PFS has not described the estimated response times for the principal LLEA relied upon for security assistance at the PFS facility so as to establish compliance with the requirements of both existing 10 C.F.R. Part 73, App. C, S 3.d, see Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, NUREG-1497, Interim Licensing Criteria for Physical Protection of Certain Storage of Spent Fuel S 4.9.2 (Sept. 1994) (physical protection plan "should describe
[LLEA] estimated response times") (supporting 10 C.F.R.
S 73.50 (g) (2)) [ hereinafter NUREG-1497], as ' ell as the recently adopted 10 C.F.R. S 73. 51(d) (6) , see 63 Fed. Reg.
at 26,959; Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, NUREG-1619, Standard Review Plan for Physical Protection Plans for the Independent Storage of Spent Fuel And High-level Radioactive p '"J Ets A6 6Ar s '. W ' hc.n . iW W""'? o r' 6 --
. 4 a Waste 5 4.9.2 & Guidance (May 1998), that a designated LLEA will provide a " timely" response to an unauthorized entry."
Because a cooperative law enforcement agreement has been shown to exist between the LLEA, the Bureau of Indian Affairs of the United State Department of the Interior, and the Skull Valley Band, see Letter From Jay E. Silberg, Counsel for PFS, to Licensing Board enc 1. (June 24, 1998),
( which has not been subjected to an adequately supported l legal or factual challenge by the State, this contention is inadmissible relative to its bases alleging (1) a failure to 1
provide such an agreement in the application; (2) the difference between security plan and emergency' plan statements about the LLEA~ agreement; and (3) lack of
-jurisdiction and law enforcement authority by the LLEA on l
the Skull Valley Band's reservation.' See LBP-98-7, 47 NRC at 180-81. Further, this contention is inadmissible relative to its bases regarding mutual aid agreements To the degree the State's claim regarding helic-pter use has some relevance to the question of a " timely" LLEA l
response, it is within the scope of this contention as admitted.
- The State has suggested that the legal question of the jurisdiction of federal, state, and local law enforcement agencies on Native American reservations is "very murky." Tr. at S-8; see Tr. at S-32 to S-33. In light of the State's own discussion of this issue, see State PSP Contentions Reply at 12-13, nothing on the face of the cooperative agreement gives us cause to question its validity as it provides such jurisdiction on the Skull l
l Valley Band's reservation for the designated LLEA.
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between the LLEA and other local governments and the availability of special weapons and tactics (SWAT) teams in that these assertions mpermissioly challenge the Commission's regulations or generic rulemaking-associatea determinations; and/or lack adequate factual or expert opinion support. See id. at 179, 180-81.
Security-D -- Power Supply CONTENTION: The Applicant's discussion of the security power system does not ensure that the security system provides the protection required by 10 C.F.R. Part 73.
DISCUSSION: State PSP Contentions at 7-9; PFS PSP Contentions Response at 31-44; Staff PSP Contentions Response at 14-15; State PSP Contentions Reply at 14-16; Tr.
at S-55 to S-64.
RULING: Inadmissible, in that the contention and its supporting bases impermissible challenge the Commission's regulations or generic rulemaking-associated determinations (bases one, four, and five); lack adequate factual support (bases one, two, three, and five); and/or fail properly to challenge the PFS application (bases two, three, four, and five) - See id. at 179, 180-81.
- In its reply pleading, the State questions the applicant's compliance with a provision of the staff's interim licensing criteria that requires standby power duration to equal or exceed twice the LLEA response time.
See State PSP Contentions Reply at 16 (citing NUREG-1497, at S 4.6.3) Putting aside the question of whethar this is an attempt to amend the contention without meetina the
'. continued.
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6 I e Security-E -- Alarm System Performance CONTENTION: The Applicant has not demonstrated that the performance of the alarm systems described in its Security, Plan are adequate to assess the detection of intruders at the site in that:
(a) The Applicant has only generally discussed the perimeter intrusion detection systems in its Security Plan and has failed to give minimum specifications for the system in accordance with 10 C.F.R. S 73.50 (b) (4) and Regulatory Guide 5.44.
(b) The Applicant's closed circuit television (CCTV) system and coverage plan description are too limited to show the logic for the location of the devices or their operational capability nor does the Applicant's description of the CCTV system confirm the assumptions relied on by the Applicant in the Security Plan to show that the CCTV system is adequate to detect intrusions.
DISCUSSION: State PSP Contentions at 9-10; PFS PSP Contentions Response at 44-50; Staff PSP Contentions Response at 15; State PSP Contentions Reply at 16-19; Tr.
at S-64 to S-78.
RULING: Inadmissible in that this portion of the contention and its supporting bases impermissible challenge the Commission's regulations or generic rulemaking-associated determinations (paragraphs (a) and
"( . . . continued) late-filing criteria of 10 C F.R. S 2. 714 (a) (1) , although we admit that portion of State's contention Security-C that concerns LLEA response times, see suora p. 15, we are unable to find this power duration concern has an adequate basis given the backup generator operation duration and the potential for extending that operation duration. See Tr.
at S-56, S-64.
_ _ _ u nmr r ne ener r one T eM 1vN PENDING nevlu.
. e a (b)); lack adequate factual support . paragraph (a)}; and/or fail properly to challenge the PFS application (paragraphs
'I
.(a) and (b)). See id. at 179, 180-81.
Security-F -- Intermodal Transfer at Rowley Junction CONTENTION: The Security Plan fails to address the performance objectives and requirements of 10 C.F.R.
SS 73.25, 73.26, 73.45, 73.46, 73.50, and Part 73, App. C for fixed site physical protection of the intermodal transfer facility at Rowley Junction or to adequately protect transit of spent fuel into and out of Rowley Junction in that:
(a) The Security Plan must address the applicable requirements of Part 73 and 10 C.F.R. S 72.180 for transportation to and from the proposed ISFSI.
(b) The Security Plan must address physical protection at the intermodal transfer point because the intermodal transfer point could be considered a fixed site subject to the requirements of 10 C.F.R. SS 73.45, 73.46, and 73.50.
(c) The Security Plan fails to address essential regulatory components for providing security at the intermodal transfer facility.
(d) The intermodal transfer facility represents a high risk for unauthorized access or activities because of its proximity to Interstate 80.
DISCUSSION: State PSP Contentions at 10-12; PFS PSP Contentions Response at 50-59; Staff PSP Contentions Response at 16-18; State PSP Contentions Reply at 19-20; Tr.
at S-78 to S-90.
RULING: Inadmissible in that the contention and its supporting bases impermissible challenge the Commission's regulations or generic rulemakinc-associated determir.ations, including 10 C.F.R. Parts 71, 72, and 73 as they govern
. .A. . L R 9 % E LAR;c I:" S c.na M rzhu 2 h v.cv1nW --
i s physical security for the off-site transportation of spent fuel." See id. at 179.
Security-G -- Terrorism and Sabotage CONTENTION: The Applicant has failed to adequately assess and describe procedures that will protect spent fuel ,
from unauthorized access or activities, such as terrorism I and sabotage, as required by 10 C.F.R. SS 73.25, 73.45, and Part 73, App. C.
DISCUSSION: State PSP Contentions at 13-16; PFS PSP' Contentions Response at 59-72; Staff PSP Contentions Response at 18-20; State PSP Contentions Reply at 20-21; Tr.
at S-90 to S-92.
RULING: Inadmissible in that the contention and its supporting bases lack materiality; impermissible challenge the Commission's regulations or generic rulemaking-associated determinations, including 10 C.F.R S 72.184 (a) concerning the submission of procedures and 10 C.F.R. Parts 71, 72, and 73 as they govern physical J security for the off-site transportation of spent fuel; lack
)
" Our ruling on Security-F is based on the State's reliance upon rail transportation volume / queuing and transportation-related sabotage as the bases for this contention, which we previously rejected as appropriate bases for admitted contentions Utah B and It Utah C. See ;
LBP-98-7 47 NRC at 184, 186, 198 n.20. should be noted, however, that our ruling here has no impact on the i admissibility or scope of Utah B, which states with respect j to the Rowley Junction intermodal transfer point that "it is l important to provide the public with the regulatory projections that are afforded by compliance" with 10 C.F.R. Part 72, including a security plan . LBP-98-7, !
47 NRC at 251.
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adequate factual support; and/or fail properly to challenge the PFS application. See id. at 179-81.
Security-H -- Transportation of Spent Fuel To and From the ISFSI CONTENTION: The Applicant has failed to demonstrate how it plans to comply with applicable physical protection requirements during transportation to and from the proposed ISFSI in accordance with 10 C.F.R. S 72.180 in that:
(a) The Security Plan is inadequate to demonstrate how the Applicant will comply with 10 C.F.R. S 73.37, including monitoring spent fuel movements, reacting to unforeseen situations, or -
communicating with necessary individuals, and other applicable portions of Part 7 3 ,- as required by 10 C.F.R. S 72.180.
(b) The Security Plan does not provide adequate in-transit physical protection to protect the health and safety of the public because the Applicant does not describe route conditions or designate transportation routes and alternatives, or deceribe security measures for each of the potential in-transit routes and evaluate any natural conditions or man-made characteristics which may impact security procedures.
DISCUSSION: State PSP Contentions at 16-18; PFS PSP Contentions Response at 72-79; Staff PSP Contentions Response at 20-21; State PSP Contentions Reply at 21-22; Tr.
at S-92 to S-99.
RULING: Inadmissible in that this contention and its supporting bases impermissible challenge the Commission's l
regulations or generic rulemaking-associated determinations, including the recently revised 10 C.F.R. S 72.180 as it limits stand-alone ISFSI security measures to onsite transportation, 63 Fed. Reg. at 26,961-62; see 60 Fed.
,,- 9?lsLE A E7 rE9"'"Dhr uum iva n.num Z:'? r
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1 j
Reg. 42,079, 42,082 (1995), and 10 C.F.R. Parts 71 and 73 as I
they govern physical security for the off-site transportation of spent fuel. See LBP-98-7, 47 NRC at 179.
Security-I -- Establishment'of a Central Communications Center CONTENTION: The Applicant has failed to identify the establishment of an adequate communications center as required by 10 C.F.R. S 73.37 (b) (4) in that:
(a) The Applicant makes the. statement that the l status of spent fuel during transit will be monitored; however, nowhere in the Security Plan does the Applicant describe a designated communications center with the capability of tracking spent fuel shipments from any or all of the 110 reactor sites.
(b) Neither the Applicant's Central or Secondary Alarm Stations nor the Applicant's Alarm Station Communications Center appear to have the ability to track spent fuel shipments across the country.
DISCUSSION: State PSP Contentions at 19; PFS PSP Contentions Response at 79-81; Staff PSP Contentions Response at 21-22; State PSP Contentions Reply at 22-23; Tr.
at S-99 to S-105.
RULING: Inadmissible in that this contention and its supporting bases impermissible challenge the Commission's regulations or generic rulemaking-associated determinations, including 10 C.F.R. Parts 71, 72, and 73 as they govern physical security for the off-site transportation of spent fuel. See LBP-98-7, 47 NRC at 179.
nfuwLE A66"ADWar ORMATION PENDL a ..=
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1 III. CONCLUS:ON I
With regard to the nine PSP contentions proffered by i
i intervenor State of Utah, we find that only its PSP contention Security-C is admissible to the extent it concerns the issue whether, in accordance with applicable regulatory requirements, see 10 C.F.R. Part 73, App. C, S 3.d, seg also 63 Fed. Reg. at 26,963 (to be codified at 10 C.F.R. S 73. 51(d) (6) ) , the designated LLEA will provide a
" timely" response to any unauthorized activities at the PFS facility.
For the foregoing reasons, it is this twenty-ninth day of June-1998, ORDERED, that:
- 1. Intervenor State of Utah's physical security plan contention Security-C is admitted for litigation in this proceeding . 22
- 2. The following State physical security plan contentions are reiected as inadmissible for litigation in this proceeding: Security-A, security-B, Se urity-D, Security-E, Security-F, Security-G, Security-H, and Security-I.
l
" The language of this admitted contention is as set
! forth in the text above. See suora p. 14.
l h .;AN Lr i c 9 AFEGUARDS-- 1~ 2N .T I Oo r u n o u . a- 2 E'/ I " -
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- 3. On or before Monday, July 6, 1998, the State, PFS, and the staff should advise the Board in a joint filing whether they have any objection to the public release of any part of this memorandum and order because it would involve the disclosure of 10 C.F.R. Part 73 " safeguards inf orma t ion . " "
- 4. Motions for reconsideration of this memorandum and order must be filed on or before , Friday, July 10, 1998, and responses to such motions must be filed on or before Wednesday, July 21, 1998. Both reconsideration motions and
" Unless they contain proprietary or safeguards information, the filings required or permitted under this memorandum and order should be served on the Board, the Office of the Secretary, and counsel for the other participants by facsimile transmission, e-mail, or other means that will ensure receipt by close of business (4 :30 p.m. EDT) on the day of filing. See Licensing Board Memorandum and Order (Initial Prehearing Order) (Sept. 23, 1997) at 5-6 (unpublished); Licensing Board Memorandum and Order (Additional Guidance on Service Procedures) (Nov. 19, 1997) . (unpublished) .
If a filing required or permitted under this memorandum and order includes proprietary or safeguards informati n, it should (1) be served in the manner and on the individuals described in paragraphs I.H.1.a.-b. of the Board's December 17, 1997 memorandum and order, as amended, and include a cover letter or memorandum that shall be served on all other participants as described in paragraph I.H.2. of that issuance, see Licensing Board Memorandum and Order (Protective Order and Schedule for Filing Security Plan '
Contentions) (Dec. 17, 1997) at 8, 9 (unpublished);
Licensing Board Memorandum and order (Additional Amendments to Protective Order) (Dec. 23, 1997) at 2 (unpublished); and (2) be served so as ensure receipt by the individuals described in paragraph I.H.1.a. of the Board's December 17, 1997 memorandum and order by the next business day.
- ii;J G c nn.m"p r :::X L. .n i iUN renuwG .u. J:G l
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responses are subject to the previously established ten-page limit. See LBP-98-7, 47 NRC at 246.
THE ATOMIC SAFETY AND LICENSING BOARD" L * ,.k ,
4 g, ;I .
G. Paul Bollwerk, III ADMINISTRATIVE JUDGE i
_if-t ,. b t.,/ ) [. L,C s l J9rry R. kl'ine 4 ADMINISTRATIVE JUDGE '
, ..sa l)\
Peter S. Lam ADMINISTRATIVE JUDGE Rockville, Maryland June 29, 1998
" Copies of this memorandum and order were sent this date to counsel for applicant PFS and for intervenor State of Ut'h by overnight / express mail, and to staff counsel through the agency's internal mail system. In addition, this date a memorandum was sent by e-mail to all the parties in this proceeding advising them of the issuance of this decision and the Board's determination to afford it confidential treatment pending a response by the State, PFS, and the staff to the Board's inquiry under ordering paragraph three above. See Licensing Board Memorandum (Notice Regarding Issuance of Decision on Admissibility of Physical Security Plan Contentions) (June 29, 1998)
(unpublished) ne mLE ASWEGUA9_RE _ r-' ?.T:::: Tc.n vi:w d.'/ r?
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION in the Matter of )
) 1 PRIVATE FUEL STORAGE L.LC. ) Docket No. 72-22-ISFSI
) i (Independent Spent Fuel Storage )
installation)
CERTIFICATE OF SERVICE l l
I hereby certify that copies of the foregoing LB M&O (LBP-98-13) re PHYSICAL SECURITY PLAN 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.
John F. Cordes, Jr." Adininistrative Judge Office of Commission Appellate G. Paul Bollwerk,111, Chairman Adjudication Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Mail Stop - T-3 F23 Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555 Administrative Judge Administrative Judge Jerry R. Kline Peter S. Lam Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Sherwin E. Turk, Esq." Denise Chancellor, Esq.
- Catherine L. Marco, Esq. Assistant Attorney General Office of the General Counsel Utah Attorney General's Office Mail Stop - O-15 B18 160 East 300 South,5th Floor U.S. Nuclear Regulatory Commission Salt Lake City, UT 84114 Washington, DC 20555 ;
Jay E. Silberg, Esq.
- Shaw, Pittman, Potts and Trowbridge 2300 N Street, NW Washington, DC 20037 Dated at Rockville, MD this 20db_ day of June 1998 Office of the Secretary'of the ComNiission Express mail
" Hand delivered l
l L________-_-------__-_
. .r -
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter 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 RE PUB. AVAIL. OF CONT.
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 Bo11werk, III, Chairman Adjudication Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Mail Stop - T-3 F23 Washington, DC 20555 U.S. Nuclear Regulatory Cor;ission Washington, DC 20555 Administrative Judge Administrative Judge Jerry R. Kline Peter S. Lam Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Sherwin E. Turk, Esq.
Catherine L. Marco, Esq. Diane Curran, Esq.
Office of the General Counsel Harmon, Curran, Spielberg & Eisenberg Mail Stop 15 B18 2001 S Street, N.W., Suite 430 U.S. Nuclear Regulatory Commission Washington, DC 20009 Washington, DC 20555 Martin $. Kaufman, Esq. Joro Walker, Esq.
Atlantic Legal Foundation Land and Water Fund of the Rockies 205 E. 42nd St. 165 South Main, Suite 1 New York, NY 10017 Salt Lake City, UT 84111 L____.______ _ _ _ _ _ _ . _ _ _ _ _ _ _
Docket No.(s)72-22-ISFSI LB M&O RE PUB. AVAIL. OF CONT.
Denise Chancellor, Esq.
Assistant Attorney General Jay E. Silberg, Esq.
Utah Attorney General'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 John Paul Kennedy, Esq. Clayton J. Parr, Esq.
Confederated Tribes of t' e Goshute Castle Rock, et al.
Reservation and David Pete Parr, Waddoups, Brown, Gee & Loveless 1385 Yale Avenue 185 South State Street, Suite 1300 Salt Lake City, UT 84105 Salt Lake City, UT 84111 Danny Quintana, Esq. Richard Wilson Skull Valley Band of Goshute Indians Department of Physics Danny Quintana & Assocs., P.C. Harvard University 50 West Broadway, Fourth Floor Cambridge, MA 02138 Salt Lake City, UT 84101 Dated at Rockville, Md. this 7 day of July 1998 Office of the Secretary of the Commission
- _ _ _ .