ML20236P321
| ML20236P321 | |
| Person / Time | |
|---|---|
| Site: | 07200022 |
| Issue date: | 06/29/1998 |
| From: | Bollwerk G Atomic Safety and Licensing Board Panel |
| To: | NRC OFFICE OF THE GENERAL COUNSEL (OGC), UTAH, STATE OF |
| Shared Package | |
| ML20236J976 | List: |
| References | |
| 97-732-02-ISFSI, 97-732-2-ISFSI, ISFSI, LBP-98-13, NUDOCS 9807160253 | |
| Download: ML20236P321 (27) | |
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DOCKETED i
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( , UNITED STATES OF AMER:CA LEP-95-$mutr 3 NUCLEAR REGULATORY COMMISSION 98 In 29 P2 :56 ATOMIC SAFETY AND LICENSING BOARD i
Before Administrative Judges: CC i F. .. :.. '
G. Paul Bollwerk, III,. Chairman ADA,,
l Dr. Jerry R., Kline Dr. Peter S. Lam EdERVED DUN 2 919 l
l l In the Matter of Docket No. 72-22-ISFSI PRIVATE FUEL STORAGE, L.L.C. ASLBP No. 97-732-02-ISFSI (Independent Spent Fuel June 29, 1998 Storage Installation)
MEMORANDUM AND ORDER.
(Ruling on State of Utah Physical Security Plan Contentions)
Pending before the Licensing Board are nine contentions
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filed by intervenor State of Utah (State or Utah) regarding the adequacy of the physical security plan (PSP) filed ^y 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 Val'ey, .
Utah. For the reasons set forth below, we find that (1) expert sponsorship of the-State's PSP contentions is not an absolute prerequisite to their admission; and (2) only one l of those contentions -- Security-C -- is admissible as it
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As we.previously noted in LBP-98-7, 47 NRC 142, 160
. (1999),, shcr:1y before the November.1997. deadline for.
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protective ~ Order to gain accessfto the applicant's Pbd. - The 1
moard-issaec :.ne recuested protect ve orcer, wnicn was necessary Pecause the PSP contains " safeguards information" that is not-subject.to public disclosure under 10 C.F.R.
L Part 73, and established a separate filing schedule for any State PSP. contentions. The contentions now at issue, i designated.. Security-A-through Security-I,- were timely filed
.by the State in early January 1998,-and su secuently b were the subject of responses by P.S and.the NRC staff. See LEP-96-7, 47 NRC a 161, 162; see also.[ State) Contentions Se w.. ... .),.n. -. a.
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1998) hereinafter ??S PSP Contentions Response); NRC i
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(Jan. 20, 1998) [hereinaf ter Staf f Pi? Contentions i i !
Response). During a late January 1996 init:al prehearing conference, to avoid clos:ng the proceeding to the public 1
for security reasons:, the Board ':mited arguments from these
. j 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 substance of those !
conte'ntions' admissibility. Egg LBP-98-7, 47 NRC at 165-66; E2e also [ State) Reply to NRC Staff and Applicant's .
1 Responses to Utah's Security Plan Contentions Security-A ;
I Through Security-I (Feb. 11, 1998) [ hereinafter State PSP Contentions Reply).
I Prior to any ruling by this Board on the admissibil ty of.these nine contentions, the Chief Administrative Judge j issued an order designating a separate Licensing Board with jurisdiction over PSP matters, including the admissibility of the State's nine contentions. See LBP-96-7, 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-PSP matters. See is.
a: 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
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l-L admissibility of the State's PSP contentions. Applicant PFS L
ans ne sta::, n:we*/e r . '.ad objected to the Chief
. Administrative Judge's action establishing a second Board, and in a June 5, 1998. decision, the Commission reversed the-L Chief Administrative Judge's action. See CL*-98-7, 47 NRC __
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l (June 5, 2996). Consequently, the State's PSP contentions once again have come before us for a ruling on l=
l admissibility.
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In'aEJune 8, 1998 directive, we offered the State the opportunity to make an oral presentation on the previously scheduled date'concerning the admissibility of its PSP contentions. Ege Licensing Board Memorandum and Order l
(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 l
l 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.;
- Citations to the transcript.for the Board's June 17, 1998 in camera session have the resignation "S ~.
Transcript citations withou: this prefix refer to public Board sessions.
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( ~. ANALYSIS
.A; Standards for Admiss::n :f C ntent;:ns 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. 5 2. 714..b) (2) (1) - (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 proveLthe 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 -1 l
accompanying environmental and safety reports) that are j disputed and the supporting reasens for the dispute, or (b) j i
I the identification of any purported f ailure .of the application to contain information on a relevant matter as required by law and reasons supporting the deficiency allecation. A contention that fails to meet any one of 1
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these standards.must be dismissed, as must a contention that, even rf preven, wou'd-he Of n: censecuence because i: .
would not ent le a petitioner to any relief. Id.
5 2.7' 4 (d) (2 ) .
As we also noted in LBP-98-7, 47 NRC at 179-81, under
.the agency's existing case aw interpreting these 1 1
I section 2.714 requirements, a number.of more specific 4 corollaries have developed regarding contention admissibility. Thus, a contention is~ subject'to dismissal if it (1) improperly challenges applicable statutory 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.3 I
2 The Board's use of the conjunctive "and/or" in connection with its rulings on these PSP contentions and the non-PSPLcontentions filed.by'the. State and the other petitioners is intended to reflect the fac; that a failure relative to any one of the rec.uirements of section 2.714 (b) is sufficient grounds for dismissal of a contention, i
) With regard to this last precept, an improperly based challenge to a license application includes one that is
'rceted in a misreading or misinterpretation of the license application. See 3eorcia *nstitute Of Ter'.nolocv (Secrgia Tech Research Reactor, Atlanta, Georgia), LBP-95-6, 41 NRC 251, 300, varsted ir car and remanded on c her crounds, (continued...)
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B '. Expert. Support for_the State's PSP Contentions
RULING: .Before'considering each of the State's'nine PSP contentions against these standards, we must resolve an ov'rarching-issue e 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 i l and 2), LBP-82-51, 16 NRC 167, 177 (1982),'that "an l
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Intervenor must-have a qualified expert and must submit to a protective order if-he wishes to pursue a: security plan J t
L contention," PFS asserts (1) a security plan contention can be admitted only if sponsored by an expert witness; and (2) l f
l 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. Seg PFS PSP Contentions Response at 2-6; Tr. at 455-57. Both the State and the i i
staff disagree. The State asserts Mr. Sinclair's experien:e
.and training are sufficient to qualify him as an expert for ,
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CLI-95-10, 42 NRC 1, affirmed in cart on other crounds, 4 2 NRC lil - (1995) . 1 i
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the purposes of contention admissibility. See Tr.
at 452-55. In add:::on, ot:n :ne 5: ate and the staff
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maintain that the :ssue of Mr. Sinclair's expertise is irrelevant tc.the degree there is documentary or other
! information sufficien to support a PSP contentien's i admission. Egg State PSP Contentions Reply at 2-4; Tr.
at 458-65.
1 In reviewing this matter, we conclude there are two i
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 .J ;
i contentions; and (2) what'is the information -- documentary, expert opinion, or otherwise -- necessary to support the 1 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 of ficials) 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 Soard discussion cited by PFS wasLon whether an intervenor group'would be allowed to review'the' facility PSP so the group could " pursue" specific security.cen entions in :he case..' Fee _EP-52-5;, 16 ::RC
' The Cstawba Etard had " conditionally" admitted a (continued...)
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at 176. The Board there required that the group obtain the 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. g;g id.
The .q.a.t.p_w_b.a Board's " expert retention" condition thus was directed at providing security plan access rather than assessing. security plan contention _ adequacy and i
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 j
i of the information in a security plan. Without those i
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
- ( . . . conti..aed) security plan contention conditioned on the intervenor's complying with.the Board's requirements for access to the plan, after which the intervener was to have the opportunity
-to " develop specific contentions." LBP-82-51, 16 NRC ,
at 176. Shortly thereafter, conditional admission of l contentions for any reason was banned. See Duke Power Co. !
(Catawba Nuclear Power Station, Units 1 and 2), ALAB-687, l 16 NRC 4 6 0, 467 (1962), rev'd on other crounds, CL1-83-19, i 17 NRC_1041 {1983).
5 In the Catawba case, by imposing these ecess requirements the Board discovered the petitioner was I (continued...)
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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 Gove,rnor 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 (cr 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 l
l 5( .. continued) unwilling to commit to giving appropriate treatment to safeguards information. See LBP-62-51, 16 NRC at 176.
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i adequacy of the applicant's PSP to meet the requirements ior l
security plan access outi:ned ;r ~arswba, t l
Once having plan access, any contentions tne State fl l
formulates are then subject to the same basis and !
specificity requirements as other contentions. Expert opinion support is not required for a contention, at least as long as there is other supporting information sufficient {
i to provide the contention with an admissible basis. Thus, {
l contrary to tne applicant's assertions,/ Mr. Sinclair's {
l purported lack of physical security expertise would not be a i
basis for rejecting the State's PSP contentions out of hand. {
J Having found that Mr. Sinclair's credentials are l 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 t i
and hacardous substances does not support a finding he has the necessary expertise in physical security matters. Nor does his NRC health physics training, his position and activities as Director of the State Division of Radiation 1
Control, or his status as the Governor's designee for j l
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receiving the PFS security plan, Eri Tr. at 452-55, 460-63, i
provide him with the requisite credentials for desicnatio" !
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- as a physical security expert. Because his sponsorship of
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those contentions does not prevtde " expert" support relative
- to their admissibility, tn.assesstng tne contentions below ace must consider whether the other supporting information i- provided is sufficient to establish that the State's PSP contentions are admissible.
l C. ' State Security Plan Contentions +
l-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, l
including failure to. demonstrate that it has adequate staffing capability to cope with or. respond to safeguards j contingency events.
DISCUSSION: State' PSP Contentions at 2-3; PFS PSP Contentions' Response at 7-14;. Staff PSP Contentions Response at 10-12; State PSP Contentions Reply at 5-8; Tr. at S-38 to l- S-48.
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' 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. Egg Licensing Board Memorandum and Order-(Memorializing
-Prehearing Conference Directives) (June 16, 1998) at 2 n.*.
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The Board likewise has attempted to craft,this memorandum and order to avoid any discussion of safeguards information, 4 thereby permitting this decision to become a public issuance >
l in toto. Nonetheless,;we initially are acccrding 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 irfra p. 24.
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. .c RULING: Inadmissible, in that-(1) the contention and its basis regarding the adequaty 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.
S173.51(d), gag 63 Fed. Reg. 26,955, 26,957, 26,959 (199 8 ) ;'
and/or lack adequate factual support; and (2) the contention and.its basis regarding the availability of local; housing
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' 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. Egg LBP-98-7, 47 NRC at 179, 180-81. Moreover, to the extent the State seeks to rely on the question 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. Egg id. at 180-81; ggg a}so infra p. 16.
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' Although this revised rule will not become effective j until November of this year, fer the purpose of determining the admissibility cf the State's PSP contentions, its adoption by the Commission gives it a regulatory force we ,
cannot disregard. Egg Potomac Electric Power Co. (Douglas Point Nuclear Generating Station, Units 1 and 2), ALAB-218, 8 AEC 79, 85 (1974).
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Security-B - Equipment and Training Cententicn: The Applican: "as not descr bed the type .
or icca itn cf 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 l
Contentions Response at 14-19; Staff PSP Contentions Response at 12-13; State PSP Contentions Reply at 8-10; Tr.
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at S-48 to S-54.
RULING: Inadmissible, 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 i
E 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-96-7, 47 NRC at 179-80, 180-81. Moreover, to the extent the State seeks to rely on the issue of the l.
designated LLEA's. lack.cf jurisdiction and law enforcement L authority on the Skull Valley Band's reservation as a basis j i
! for this contention, that assertion lacks adequate legal or !
l factual support. See id. at 180-E1; see also infra p. 16.
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1 Security C -- Local Law Enforcement Contention: The Appl; an: "as .ct met the requirements .
of 10 C.F.R. Fart 73, App. O, C ntents 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 i
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 i
Review Plan for Physical Protection Plans for the Independent Storage of Spen Fuel And High-level Radioactive 4
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Waste 5 4.9.2 & Guidance 'May 1995:, 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 ;nterior, and the skull Valley Band, see Letter From Jay E. Silberg, Counsel for FFS, to Licensing Board enc 1. (June 24, 1998),
which has not been subjected to an adequately supported legal or factual challenge by the State, this contention is inadmissible relative to its bases alleging (1) a failure to 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 1
the Skull Valley Band's reservation.' See LBP-98-7, 47 NRC l l
at 180-81. Further, this contention is inadmissible j relative to its bases regarding mutual aid agreements 8.To the degree the State's claim regarding helic;pter use has some relevance to the question of a " timely" LLEA 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 cf 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 prov des such jur:sdiction on the skull Valley Band's reservaticr fer the designated LLEA.
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between the-LLEA and other 1cca*. g:eernments and the avadab '. :y :f sper a'. wea;:nr ar.f':actici SxA- :eams in 1
that these-assertions' impermissible challenge the Commission's regula :.ons er generic rulemaking-associateo determinations'; and/or lack adequate factual or:exper:
opinion support.
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Security-D -- Power Supply CCNTENTION: The Applicant's discussion of the security power system does not ensure tha: 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) " E.ag-id. at 179, 180-61.
" 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-4-a cura;;cn to equa; Or exceec tw:ce ne .._,
__ n responsa 53% State PSP Contentions Reply at 16 (citing NUREG-1497, at S 4.6.3). Putting aside the question of whetr*r this is an attempt.no amend the centention without meeting the (continued...)
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i Security-E -- Alarm Syster Performance CONTENT *ON: The App'. cant has not demonstrated that the performance of the a'arr systems desc:i'ed . r 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 l 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 1 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.
l DISCUSSION: State PSP Contentions at 9-10; PFS PSP i
Contentions Response at 44-50; Staff PSP Contentions Response at 15; State PSP Contentions Reply at 16-19; Tr. ;
i at S-64 to S-78.
RULING: Inadmissible in that this portion of the contention and its supporting bases impermissible challenge i
.the Commission's regulations or generic rulemaking-associated determinat ons (paragraphs (ai and i
)
"(... continued)
- late-filing criteria of 10 C.F.R. 5 2. 714 (a ; '1) , although we ,
admit that portion of State's contention Security-C that j concerns LLEA response times, see suora'p. 15, we are unable I to find this power duration concern has an adequate basis given the backup generator operation duration and the potential for extending that operation duration. Egg Tr. !
at-S-56, S-64.
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(b)); lack adequate factual supp;rt . paragraph (a) ) ; and/or fa:1~ pro,rerly to chal'.er.ge the :-75 3.:p'.:sti:r paragraphs (a) and~(b)). See id. at 179, 180-81.
. Security-F -- Intermodal .ansfer at Rowley Junction CONTENTION: The Security Plan fails to address the performance objectives and requirements of 10 C.F.R.
S S 17 3 . 2 5 ', 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 er to adequately
' protect transit of spent fuel inte 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 73.5).
(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 16-16; State PSP Contentions Reply at 19-20; Tr.
at'S-78 to S-90. i i
RULING: Inadmissible in that the contention and its I
supporting bases impermissible challenge the Commission's regulations or generic rulemaking-associated determinations, including 10 C.F.R. Parts 7"., 72, and 73 as they govern
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physical security for the eff-site' transportation of spent fuel. See ii. a- '.71.
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 and sabotage, as required by.10 C.F.R. 55 73.25, 73.45, and :
Part 73, App. C. l DISCUSSION: State PSP Contentions at 13-16; PFS PSP' l 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 material'ity; impermissible challenge j i
the Commission's regulations or generic l'
rulemaking-associated determinations, including 10 C.F.R.
S 72.184 (a) concerning the submission of procedures and l 10 C.F.R. Parts 71, 72, and 73 as they govern physical l security for the off-site transportation of spent fuel; lack i
j L " Our ruling on Security-F is based on the State's reliance upon rail transportation volume /queutng and transportation-related sabotage as the bases for this i contention, which we previously rejected as appropriate' i bases for admitted contentions Utah B and *: Utah C. Eeg should be noted, LBP-98-7 47 NRC at 184,.186, 198 n.20.
however, that our ruling here has no impact on the admissibility er scope of Utah B, which states with respect to the Rowley Junction intermodal transfer point that "it is ,
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-95-7, ;
I 47 NRC at 251. ;
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adequate factual support; and/er fall properly to challenge the PFS applicat:tn. S++ lj. at 17F-51.
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 ,
l requirements during transportation to and from the proposed ISFSI in accordance with 10 C.F.R..S 72.180 in that:
l (a)
The Security Plan is inadequate to demonstrate how i the Applicant will comp'y with 10 C.F.R. S 73.37, i including. monitoring spent. fuel movements, reacting to unforeseen situations, or .
communicating with.necessary' individuals, and .
other applicable portions of Part 73, as required b'y 10 C.F.R. S 72.180.
1 1
(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 dercribe 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 regulations or generic rulemaking-associated determinations, including the recently revised 10 C.F.R. S 72.180 as it limits stand-alone ISFSI security measure, to onsite transportation, 63 Fed. Reg. at 26,961-62; see 60 Fed.
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Reg. 42,079, 42,082 (1995;, and 20 C.P.R. Parts 71 and 73 as they govern physica'_ security f:r 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:
1 (a) The Applicant makes the statement that the status of spent fuel during transit will be monitored; hnwever, 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. I l
at S-99 to S-105.
RULING: Inadmissible in that this contention and its supporting bases impermissible challenge the Cc= mission'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 ci spent
! fuel. Eeg LBP-98-7, 47 NRC at 179.
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W;th regard :s the n:ne P 5.; content;cns proffered oy intervenor State of Utah, we find that cnly 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, see 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.- - -
- 2. The following State physical security plan contentions are redected as inadmissible for litigation in this proceeding: Security-A, Security-S, Se urity-D, Security-E, Security-F, Security-C, Security-H, and Security ~.
" The lar.guage of this admitted cententicr is as set forth in the text above. See suora p. .4.
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, 3. On or before Monday Julv 6, 1998, the State, PFS, and the staff shcu'd advise the Board in a joint filing whether they have any objection to the puolic release of any part of this memorandum and order because it would involve the disclosure of 10 C.F.R. Part 73 " safeguards information."
- 4. Motions for reconsideration of this memorandum and order must be filed on or before Friday. July 10, 1999, 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 :3 0 p.m. EDT) on the day of filing. Sgg 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 :.H.1.a.-b. cf the Board's Decerber 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, gig Licensing Board Memorandum and Order (Protective Order and Schedule for Filing Security Plan Contentions) (Dec. 17, 1997) at 6, 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 :.H.1.a. of the Scard's December 17, 1997 memorandum and order by the next business day.
En. L L: nn.' T'L *' T ::::: .:... n. 2. . . : .w . . ~ . ': : :',, -
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responses are subject to the previcusly established ten-page
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..L M 4 v.y,1,%. .bMtT.y 4 AND LICENSING. BOARD"
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G. Paul Bollwerk, III ADMINISTRATIVE JUDGE
- .i
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@MINISTRATIVE JUDGE l 4
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Peter S. Lam i ADMINISTRATIVE JUDGE Rockville, Maryland l
. June 29, 1998 1
i 4
" Copies of this memorandum and order were sent this date to counsel for applican: 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 I
cecision anc the Boarc's determination to a,..,oro 1:
' confidential treatment.pending a response by the State, PFS, and the. staff to the Board's inquiry under ordering paragraph three above. See
-e Licensing Board Memorandum (Notice Regarding Issuance of Decision on Admissibility of Physical Security Plan Contentions) (June 29, I99E)
-(unpublished). 1
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1
UNITED STATES OF AMERICA
! NUCLEAR REGULATORY COMMISSION In the Matter of )
)
PRIVATE FUEL STORAGE L.LC. ) Docket No. 72-22 ISFSI I )
(Independent Spent Fuel Storage )
Installation) l CERTIFICATE OF SERVICE 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." Administrative Judge Office of Commission Appellate G. Paul Bollwerk, Ill, 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 <
l Atomic Safety and Licensing Board Panet 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." Cenise Chancellor, Esq.
- Catherine L. Marco. Esc. Assistant Attorney General l . Office of tne Genera! Counsel Utah Attorney General's Office Mail Stop 15 B18 160 East 300 South,5th Floor U.S. Nuclear Regulatory Commission Satt Lake City, UT 84114 Washington, DC 20555 l-Jay E. Silberg, Esq.
- Shaw, Pittman, Potts and Trowbridge 2300 N Street NW Washington, DC 20037 Dated at Rockville, MD inis 20,tth_ day of June 1998 Office of the Secretary #of the Cominission Express mail l: . Hand delivered en C_._________ _ _ _ - . .__ _ _ _ _ _ _ _ _ -
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of i
- 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 Bollwerk, 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 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.
Catherine L. Marco, Esq. Diane Curran, Esq.
Office of the General Counsel Harmon, Curran, Spielberg & Eisenberg Mail Stop 15 Bla 2001 S Street, N.W., Suite 430 U.S. Nuclear Regulatory Commission Washington, DC 20009 Washington, DC 20555 Martin S. 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 8411]
4 Docket No.(s)72-22-ISFSI LB M&O RE PUB. AVAIL. OF CONT.
Denise Chancellor, Esq.
l 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' a Goshute Castle Rock, et al.
Reservation and David Pete- Parr, Waddoups, Brown, Gee & Loveless 1385 Yale Avenue 185 South State Street, Suite 1300 l
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
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Office of the Secretary of the Commission I
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