ML19207A277
| ML19207A277 | |
| Person / Time | |
|---|---|
| Issue date: | 07/18/1979 |
| From: | Shapar H NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Gilinsky V, Hendrie J, Kennedy R NRC COMMISSION (OCM) |
| References | |
| RULE-RM-50-7 NUDOCS 7908140433 | |
| Download: ML19207A277 (20) | |
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UNITED STATES y 7p v,q
,.g.p-lg' j NUCLE AR REGULATORY COMMISSION C
WASHINGTON, D. C. 20555
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@;gf MEMORANCUM FOR:
Chaiman Hendrie g
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Comissioner Giiinsky
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Ccmissioner Kennedy l_
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Comissioner Bradford
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Commissionn Ahearne FROM:
Howard K. Shapar k
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Executive Legal Director Ns
.y-m THRU:
Lee V. Gossick V ';.:S~II352 Execu',ive Director for Operations
SUBJECT:
CLEARANCE RULE PROCEEDING The Ccmission met on June 5,1979, to discuss the report of the Hearing Board in de rulemaking proceeding ccncerning clearances for persons with access to or control over special nuclear mat &41.
The Hearing Scard in its report raised several questions cc.ic2rninc tr.e need for a clearance rule, the NRC's legal authority, and the alternatives considered by the Staff.
In a June 12, 1979, memorandum to the General Counsel and the Executive Di ector for Operations, the Secretary of the Comission requested that the Executive Legal Director provide a legal analysis whether NRC, in establishing a clearance program under section 161 i. of the Atomic Energy Act, is required to adopt the basic standards and procedures established by the Secretary of Energy.
The attached cc ents espond to the Secretary's memorandum and address these legal questions.
These comments have been coordinated with the Offices of Nuclear Material Safety and Safeguards, Nuclear Reactor Regulation, and Standards Cevelopment and, insofar as colicy matters are concerned, reflect the views of those offices.
The other matters requested in the memorandum, i.e., an opinion on alternative clearance programs and a draft fuel cycle clearance rule, will be foraarded separately.
7 fd=
f Howard K. Shapar Executive Legal Director i
Enclosure:
Staff Conrents on Hearing Board's Decision cc:
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Contact:
J. P. Murray e.
STAFF COMMENTS ON THE ACCESS HSARING 80ARD'S DECISI)N The Hearing Board in the access rulemaking proceeding issued its Report in April 1979.
The Report raised questions concerning the need for the rule, the NRC's legal authority in relation to the Secretary of Energy, and the alternatives considered by the NRC Staff.
Yhese comments address the above areas of concern and include, in particular, a legal analysis of the question whether the Commission is required to adopt the basic standards and proce-dures established by the Department of Energy in establishing a clearince n ogram under section 161i.
of the Atomic Energy Act ("Act").
SUMMARY
OF CONCLUSIONS As set forth in more detail below, the Staff believes that the Hearing Board in its Report erred in indicating that the Staff had some burden of proving the need for an access clearance rule, and in failing to recognize that the Commission had already postulated an " insider" safeguards threat that could serve as a basis for the rule.
The Staff was correct in its belief that in ordering that a hearing be held on the proposed rule, the Commission did not intend that the Staff " reinvent the wheel" by exanining de novo the nature of the safeguards threat and the need for some improved safeguards.
636 0oS
2-Further, the Stafr believes that, while a substantial legal question exists, the bet.ter legal view on balance is that in establishing an access clearance program under section 1611. of the Atomic Energy Act, the NRC is not legally
'l compelled to follow basic standards or procedures promulgated by 00E.A Accordingly, the hear',g record contains substantial infomation mgar ding citernatives to an access clearance program, and assuming that an access clearance program is implemented, the relevance of the present criteria for the information access program to this materials access program.
- However, putting the legal question regarding :GC's independent authority aside,
taere are substantial policy reasons why NRC's and DOE's clearance prc' grams should be reasonably similar.
1_/
inis legal conclusion is based upon a careful reexamination of thee Reorganization Act and its legislative history.
The legal positi on on this matter has evolved since SECY-76-503 (October 7,1976) stated tha t:
"The ERDA Administrator has the authority to establish tne basic standards and procedures respecting the naticnal secur-ity relative to personnel security programs under section 151i of the Atomic Energy Act of 1954, as amended (see Senate Report 93-980 Enercv Reorcanization Act of 1974), p. 84."
See also Staff direct testimony at 19.
However, later during the-hearing when tne Board pursued this legal issue, the Staff contin:ued with that positinn as the better legal view but stated that the position was not free from doubt (Tr. 530-533):
"we think there is a substantial legal question as to whether we do have the authority to establish different c ri te ri a. "
(Tr. 13 6)
"that is not to say the legislative history is the law."
(Tr. 531)
"Therefore, it is our legal position that there would be a subs tantial questien if we went out on our cwn."
(T r. 531. )
See also, Staff's concluding statement at 22.
e.
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. Need for a Rule This nalemaking proceeding has had an out-of-the-ordinary history.
The Commission formally raised the matter of possible clearances for pers'ns wit' access to or control over special nuclear material under section 1611.
of the Act in a notice of proposed ralemaking which invited interested mem-bers of the public to submit written comments.
This action followed receipt and evaluation by the Commission of the analyses and recorandations of the Staff on the matter.
Af ter numerous and forceful cotxtents were received the Co~nission decided to hold a public hearing:
'In light of the interest evidenced by the public in this pro-ceeding, the Commission has decided to hold an informai public hearing on the proposed regulations." 42 Fed.' Rec. 64703 (December 28, 1977).
Accordingly the Co : mission issued a Notice of Hearing in the rulemaking proce eding in December 1977.
However, at this time the Coxlission Md already established an " insider" threat as a basis for for.nulating detailed safeguards requirements.
Such an " insider" threat was postulated for reac-cars in 10 CFR 5 73.55, promulgated in final form some ten months before issuance of the Notice of Hearing in this proceeding:2/
"The license's shall establish and maintain an ensite physical procectica system and security organization which will provide protection with high assurance against successful industrial sabotage by both of tha following:
"(2) An internal threat of an insider, including an employee (in any position)."
2_/
42 Fec. Rec.10836 (Febraary 24,1977).
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4-
,s The necessary relation between a postulated " insider" threat and the clear-ance rule proceeding was recognized at the outset of the rilemaking proceed-ing.
As the Comission put it in the notice initiating the notice-and-comment phase of this rulemaking:
"These regulations arc being prepared to utilize a personnel security program as a measure to protect against those employed in the affected nuclear activities who might conspire to steal or divert special nuclear material or cenduct sabotage which would endanger the public by exposure to radiation.
Of cou-se, a clearance program itself does not entirely solve the roblem of the ' insider' but, in the opinion of the Conmission, experience has hown that such programs do substantially reduce t:he risk of such conspiracies.
Moreover, the proposed program is one of several elenents in the Commission's overall safeguarcs program which together protect against threats, both internal and external."
42 Fed. Rec.14880 (March 17, b. /).
Thus, from the very beginning, the existence of an " insider threat has rea-sonably been taken as a given by the Staff for the purposes of this proceeding.
However, in its Report the Board repeatedly emphasized the Board's conception of its task as including an examination into the question whether there exists a "tareat" which would justify any clearance rule at all (and, if so, what the nature of that threat is).3/
It is apparent fran the way in which 3_/
ine Boarc's Report includes these statements:
"the rule as procosed rests on the unsupported assertion of the Staff that a serious risk to the defense and security of the Nation or a significant threat to the nealtn anc safety of the general public exis ts."
(Report 32)
"the question of whether or not a rule of any so-t is needed
'deoends upon whether the Staff has producec evidence to snow' a significant risk exists."
(Report 37)
"the Staff assertion of a serious risk to the co non defense and security of the nation or of a significant threat to the (Continued)
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. this ~21emasing -
_eeding developed that the Board failed to properly appreciate the scope of the proceeding and to recognize that certain matters, including in particular the existence of an "insie " threat that could be r
used to justify a clearance rule, had been previc tsly decided by the Commis-sion.
We believe that the Staff was warranted in relying on this " insider" threat as justifying the need for some clearance or similar program to augment present safeguards requirements, and in not " reinventing the wheel" in this proceeding by reexamining de novo the nature of the safeguards
" th re a t".
Moreover, we believe that in insisting that the Staff "preve" the need for some clearance rule, the Board misconceived the role of the, Staff in the 3_/
(Continued) health anc safety of the general public, as a consequence of an act Of sabotage or tneft at a nuclear ocwer plant, is not supported by any factual submission in the record."
(Report 38)
'no doccentation supporting [ assertions by the Staff that sabotaging a reactor could result in extensive loss o# life and property] has been offerad by the record" and "wr.en the Board requested s:ecifics as to what the consequencer would be # rom a maximum radiological sabotage incident, the Staff did not provide any." (Report 39)
"In the absence of [s::ecific infor ation on the crobability of a successful thef t er sabotage attemat] the need for the prvposed ale... cann t be established." (Report 40)
"the Staf # has failed in its obligation to present clear infor ation as to t"e severity of consecuences from successful thef t or sabotage of scecial nuclear material at a nuclear reacter." (Re crt 40-41) c' 's
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proceeding.O The December,1977, Notice of Hearing in this -ulemaking proceeding made clear that the proceeding was to be in essence an informal one, and stated that the Board:
"without rendering any decision or making any recommendation, will forward the transcript of the hearing to the Com:nission together with an identification of the major issues raised at the hearing." 42 Fed. Rec. 64704 (December 28,1977).
Before the Notice of Hearing has been issued, the Commission had before it Staff analyses and recommendations which, in sum, infomed the Commission of all the Staff knew regarding the pros and cons of the proposed rule.
Nothing in the Notice of Hearing operated to divest the Commission of this ir. formation.
Since the Co-mission had before it all the Staff views,E since the hearing was to be informal and was never intended to be the exclusive basis for a Comission decision, and since the Board was merely to fonvard the record of hearing to the Co=1ission for decision, the Staff had no reason to believe that it had some " case" to prove or some evidentiary burden to bear.
It is true that, on the day before the final statements of the participants were due, the Co : mission requested recommendations from the Board as to whether a clear preponderance of the information in the record favored adoption of the rule.
However, in its request the Commission made it clear that the new
-4/
See quotations from Board's Report, note 2 suora.
While the Board's sta te-ments, taken in sum, appear to say tnat on :nis record it cannot be determined whether or not a clearance rule of any sort is needed, at page 34 cf its Report the Board nevertheless recommended that the Ccamis-sion issue a rule " utilizing the screening alternatives that utilities currently employ.
-5/
The e were several views on the issues involvinc this proceeding.
For example, in SECY 75-503 it was noted that ELD cic not believe that the necessity of a SNM access authorization program for light water reactor plants have been sufficiently demonstrated.
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responsibility assigned to the Board did not alter the informal nature of the proceeding, and the Staff had been given no reason to believe that this change in the role of the Board signified also some change in the role of the Staff.
InJeed, such a late change in the rules of the proceeding would have been unreasonable, since at that late date the participants had long since completed their evidentiary presentations to the Board.
It is unclear to us how the Board could have gone so far astray in character-izing the role of the Staff--perhaps the Board had in mind other rulemaking proceedings, such as the ECCS proceeding when the Staff did assume the role of a staunch advocate of a firm Staff position.
But the result is an unfortunate Report which has the effect of confusing a genuine policy question--how best to take account of an " insider" threat in formulating safegu'ards standards--
with a legal, procedural ques tion.6/
-6/
ine Boarc furtner confused the iss"a by referring te
" theft or sabotace" at reactors.
The record makes it clear that sabotace and not "thef t" is the concern at reactors.
(Staf f's direct sta tecient at 4 and concluding statement at 6, 7).
Therefore, the Staff did not address the consequences of " theft" at a reactor.
Infornation was pro-vided on the consequences of sabotage.
(TR 495, 497, 498, 512, 519)
As to the probabilities of sabotage occurring, the Staff stated in its concluding statement, at 5, that:
"The probability of an act of radiological sabotage by an insider is presently considered unquantifiable.
The consecuences of such sabotage are estimated (and maximun's deternined) in the Reactor Safety Study, WASH-1400.
The Staff testified (Tr. 519) that the consequences of the worst case successful sabotage could probably be no more then that established for the worst accident costulated in WASH-1400.
The risk of sabotage actually occurring depends upon many unpredictable factors.
Statements have been made that the safe operating record and lack of a prior act of sabotage should ser/e as a data base to state that the risk and tnreat are not such as to justify (Continued) 6,w, n' 0 Staff's Lecal Analysis of the Ouestion of Whether the Commission is Recuired to Acoct for Its Access Clearance Prcaram the Standards of 00E Sections 161(b) and 151(i) of the Atomic Energy Act of 1954, as amended, provide the Commission with genersl authority to promulgate safeguards requirements.
However, the at.thority afforded by those sections was con-sidered by the Atomic Energy Commissicr as insufficient to adopt a clear-ante program which impacts on first amendment rights in light of Schneider v.
Smith, 390 U.S,17 (1958).E Section 161(i)(2) was amended in 1974 to pro-vide express authority for the institution by the NRC of an access authoriza-tica p ogram wherein a person's background woul' be reviewed prior to per-mitting the individual to be involved in certain activities at rea tors and fuel cycle facilities.8/
Under section 161(i)(2) the Commission is requi, ed to make the determination crantir.g access authorization.
The scope of the 151(i)(2) investigation for the access authori;ation is described by statute as an individual's " character, 6/
Gon:1nuec) this proposal.
(Wisconsin Electric, Tr.173, written te" irony of Duke Power, p. 9).
The fact that no radiological se' a
has occurred does not mean that it will not occur.
It is neces-sary to presume that such an act could cccur.
Thus, the access auth:rization program is necessary to assist the Cc lission in reeting its statutory responsibilities to 0"cVide adecuate assur-ance that such an act, w1:h its sericus :cnsequences, dces not occur."
1/
See also 5. Re:: ort 93-989 at 9 (1974) where tne JCAE indicated that exp'.icit statutory authcrity was necessary to assure the validity of t*e a: cess Orc;#am.
The Privacy Act of 1971 also prcvides trat absent express s.atu: cry authority or an individual's consent, an agency may n:t mair.tain records pertaining to an individual's exercise of first amendment rights.
5 USC 552a(e)(7).
8/
PL 93-377 (1974),
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associations and loyalty".9/ Section 161(i)(2) establishes the standard for granting accass authorization as access not being inimical to the ccmmon defense and security.
In congressional testimony prior to the enactment of this legislation, the Commissien described the programs that would be imple-mented, if the legislation passed, as the traditional Q and L clearance programs which were subject to the 10 CFR Part 10 criteria.10/
Indeed, sec-tion 151(i)(2) as implemented by ERDA (and now DOE) is a program identical to the Q and L clearance programs based on 10 CFR Part 10.11/
The legal question here is whether this Ccmmission is free to deviate from the path of ERDA and now DOE in implementing a section 151(i)(2) naterial access program.
This question arises because of the legislative history of the Energy Reorganization Act of 1974 (hereinafter Reorgani ation Act).
9_/
ine ef fect of this statutory authority is to permit the collection of information concerning individuals' exercise of first amendment rights 1r.:luding beliefs and associations.
A full field backgr:und irsestiga-tion would be such an investigation.
A background irnestigation may also obtain information about a person's past reliabiIity and stability.
However, if the principal interest of an investigation is to detemine a person's reliability and stability, information nignt be obtained through psychological assessment.
Such an assessment,, although con-sidered by some to be an invasion of privacy, would arguably not involve a first amendment type investigation since its focus wrouid be on relia-bility and not a person's loyalty and associations.
Therefore, a reliability prcgram could arguably be autnorized under sections 161( b) and 151(i)(3) as well as 151(i)(2) of the Atonic Energy Act.
A further discussion of a reliability access program will be tne subject of the Staff's response to the Secretary's June 12, 1979 recu es t.
1_0,/
AEC Omnibus Legislation, Hearings before JCAE, 93rd. Cong. 2nd Sess. 55 0
(1974).
-11/
10 CFR Part 710 (1977).
Part 710 was modified to reflect the addition of access to SNM.
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. The material access clearance program, to the extent it pertains to licensed activities, is a regulatory function.
Section 201(f) of the Reorganization Act transferred the licensing and related regulatory functions of the AEC to fiRC.
Safeguard responsibilitie.; were established for the newly created offices of tiuclear Material Safety and SafeguardsE and the office of fluclear Reactor Regulation.b Thus, the Reorgani:ation Act on its face vests with the Comission sole authority to deternine the access program necessary and appropriate to protect the common defense and security with respect to licensed activities.
The statute on its face ccrntains no general requirement for fiRC to defer to 00E.14/
However the legislative history of the Reorganization Act nay not be dis-missed.
The Supreme Court in Train v. Colorado PIRG, 426 US 1,10 (1976),
a case involving the Atomic Energy Act of 1954, as amended, and the Federal Water Pollution Control Act, found the Court of Appeals in error for excluding legislative history in discussing the meaning of the FWPCA notwiths andl.'g a finding by that Court that PJPCA is " plain and unambiguous" and that "the legislative intent is clearly mi.nifested in the language of the statute
~
ll/
Se::icn 2C3;,a)(2) of the Reorganization Act.
W Se:tica 204(b; of the Reorganization Act.
-11/ Se: tion 204(b)(z)(3) states that certain safeguard responsibilities involving con:incency planning require " consultation and coordina tion" with ERDA nos 03E.
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4 i ts el f... ".
The Supreme Court dealt a blow to the " plain meaning rule"35b/
in stating:
"When aid to construction of the meaning of words, as esed in the statute, is available, there certainly can be no 'rula or law' which forbids its use, however clear the words may appear on 'suparficial examination'.
...In this case...the legislative history sheds considerable light on the questions before the Cou rt. "
(citations omitted) Id. at 10.
The reports of both the House Committee on Government Operations and the Senate Committee on Government Operations, the Committees which reported or the legislation that eventually became the Reorganization Act, ir.dicated that as to section 161(i) of the Atomic Energy Ac' of 1954, as amended, "that the Administrator [of ERDA, new DOE] shall establish the basic standards and procedures respecting the national security.16/
15/
Ine " plain meaning rule" is a rule of statutory constructicn which states that if the language of a statute is plain and unambiguous a Ccurt cannot give the language a different meaning.
Se tnerland Statutory Construction 46.01 (4th Ed.1972).
--16/ H.Rpt.93-707, at 27 (1973); S. Rpt.93-930, at 84 (1974).
See also similar references to sections 145 and 186(c) which give the Ccanission authority based upon common defense and security.
But see, reference to section 109, an authority limited to ccamon defense and security, where a caveat concerning national security limitations was not placed on NRC.
However, section 109 has since been amended to require certain consulta-tion in the area of the ccanon defense and security, P.L.95-242 (1978).
The tern " national security" used by the drafters of the legislative history is a term not found in the Atomic Energy ict.
That Act uses the term "commen defense and security".
I The House Report in reference to the AEC's safeguard responsibilities also stated that:
"ERDA also will assume AEC's basic responsibility for security.
This certains to the safecuardinc of scecial nuclear material aaainst diversion from oeaceful to weaoons uses, to ceclassifica-tion activities and the safeguarding of restricted data, and to other security aspectyf the provisions of the Atomic Energy Act of 1954, as amended."
The conference report further " clarifies" legislative intent by stating "all matters related to the con =on defense and security, as that terms [ sic] is used in the Atomic Energy Act of 1954, as amended," is the responsibility of the Assistant Administrator for flational Security [of ERDA].E These legislative materials strongly suggest that the draf ters of the legislation had in mind a more limited transfer of authority from AEC to fiRC in the common defense and security area than the actual language of the legislation would permit.
However, other legislative history makes this less clear.
Senator Pastore, the then Chaiman of the JCAE, during the Senata debates on the reorganization legislation sought a clarification from Senator Ribicoff, the Chairman of the Government Operations Committee and floor manager of the legislation, as to the effects of the reorganization on the common defense and restricted data.
Mr. Pastore stated:
17/
H. Rpt.93-707 at 15-16 (emphasis added).
18/ Conference Rpt., H. Rpt. 93-1445, at 27 (197?).
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U'3 "I would hope that basic policy must be established by one agency and because AEC will be separated into two agencies that it would be rather dangerous if we began to split up this responsibility for restricted data and the common defense and security, which could injure our security and sensitive features in the Atomic Energy Act.
Basic policy for all such responsibility provided for in that act must repose in ERDA.
clarify what the intent is of the legislation."b"g or less I hope that the Senator from Connecticut will mor Senator Ribicoff responded:
"Mr. President, the distinguished Senator from Rhode Island is correct in his interpretation that ERDA has undivided respon-sibility for settling basic policy relating to restricted duta and the conmon defense and security.
No one knevs better than the Senate co-Chairman of the Joint Connittee on Atomic Energy that this responsibility canrot possibly be shared by two agencies without seriously undermining these concepts as provided in the Atomic Energy Act.
I would like to make clear that it is not the intent of*this bill to divide responsibilities between ERDA an'd NSLC [ Nuclear Safety and Licensing Commission, the title given to NRC in the Senate legislation] in the crucial areas of restricted data and the co7:en defense and security.
The bill itself, as well as the recor s. receats acain and acain that NSLC's autnority extends t e licensec sector anc not to orcorans now ceina ca rried "or. i e ::t,e ceveio:ren sice of tne AEC, whicn will ce transferrec ou: ov tc ERC A.
The only area that I can see ERDA and NSLC having a shared respon-sicility with respect to security pertains to safeguards and the obvious need for cooperaticn and coordination between the two agencies in developing contingency plans for dealing with threats and actual terrorist activities relating to nuclear facilities ar.d material s.
Ocv i ou s iv, as the licensed nuclear industry exoancs t the cc71nc years 15LC will aant to craw uson the erre,1se ceveioce: cver tre Das 20 vears Dy :ne devel oyment side Of ri^ in relation to safecuards, as Droviced in se:-
t'Or luatti
. of :ne clii.
But tnis in no wav c1ves N5LC other av cn:
" pris:1ction over the weaoons crocran or any cevel:
e tai ac 1v1:1es transfer ed to ERDA as oroviceo in sec:1 n 22,.c).
19,/
C:ngressional Record S.15050 (August 15, 1974), 6 Leg. History Energy Reorganization Act 4169 (1974).
n,,
,,i 30 b30
14 -
I am as concerned as is the distinguished Senator from Rhode Island that the proposed reorganization not in any way bifurcate the basic responsibilities relating to restricted data and the comon defense and security which are clearly transferred to ERDA.
I commend the Senator for raising this important issue and deeply appreciate his continuing concern for the safety and the security of the Nation as we proceed to develop nuclear power for peaceful purposes.
Mr. Pastore, I want to thank the Senator.
I believe that straightens i t ou t. "
Id_. (emp!.usis added)
A careful reading of this colloquy suggests that Senator Ribicoff did not subscribe to the narrow NRC role in the common defense and security area arguably called for in the House and Senate reports and t:re conference report.
According to Senator Ribicoff (and, inferentially, Senator Pastore),
the concern with regard to an independent NRC role in the corr;non defense and security area lies not with the licensed sector, but with the possibility that NRC might by regulation interfere with ERDA's (new COE's) weapons and related national security programs.
This view of the Reo gani 3 tion Act in no way detracts from the NRC's authority in this rulemakir:g proceeding, which specifically deals only with the licensed sector and in no way appTies to DOE facilities.
This colloquy between Senators Ribicoff and Pasture is especially significant because it became the subject four months later of an iccortant series of cuestiens during the confirmation hearings of the initial Co=aissioners' for I
Usd Ur/
fiRC.E The nominated Commissioners were asked essentially the following question:
"Beyond the coordination and consultation between ERDA and NRC on safeguards contingency planning, as specifically provided by the Act, what sort of relationship should there be between ERDA and NRC in the safety and safeguards areas which is consistent with have veto power over the policies of the other?"guld one agency the independence of each agency? For example, s Mr. Anders responded:
" Insofar as the safeguards area is concerned, it seems to me that the sort of relationshio that should exist between ERDA and NRC is reflected in tne collocuv Decueen Senators Pastore ar'd Ribicoff set fortn on cace S.15050 of tne Ccncressional Recem of Aucust 15, 1974 Insofar as tne safety area is conconcerneo, t.ie relationsnip will, of course, be different since there will be no sharing oi' respon;ibility and each agency will be independently responsicle
~
for sharing the requisite protection of the public dth regard to its own activity.
In general one agency should not have a veto power over the powers of the other.
However, certain ERDA facilities are subject to licensigf y NRC, and to that extent NRC has a " veto" _or licensing b
p owe r. '
Mr. Rowden responded:
"Each agency should be in a position to exercise authority in the sphett of its respective responsibilities.
An act cescriotion of the framework of the relationshin between the two neve acencies in 2_0]
Ine record of the confir ation hearing is not part of the legislative history of the Energy Recrganization Act of 1974, however, it is relevant to Lhe issues here because it shcws the intent of the Com-missioners at a time when the legislation was fresh and the responses were given to the very Senators who were the Chair en of Committees involved in the reorganizatien legislation.
21/ Nominees to the f'uclear Reculatory Comission, Hearings before the JC AE, 93rd. Cong., 2nd Sess. 10 (1975).
22/
Id.
(emphasis added).
63(3 003
. the safeauards area is set forth in the floor discussion between Senators Pastore and Ribicoff en oace S.15050 of tqe Conaressional Record or Auaust 15, 1974 As respects tne safety area, eacn agency generally has independent responsibili *.y in regard to the conduct of its own activities and one agency should not have veto power over the policies of the other.
Section 202 of the Energy Reorganization Act of 1974 does, however, make cgyain categories of ERDA facilities subject to licensing by NRC."-
In summary, some legislative history suggests that NRC must defer tp DOE regarding basic standards and procedures for protecting the common defense and security, while other legislative history suggests that this deferential role only extends to NRC actions as they might affect DOE's weapons and related national security programs.
Given the early views of the NRC Com-missioners en this matter quoted above, and given that only the latter legislative history is consistent with the actual language of the statute, the choice must be in favor of an interpretation of 'the, Act as essentially preserving NRC's independent legal authority.
Thus, while the contrary legislative history gives rise to a substantial legal question, the better legal view on balance is that NRC is not legally compelled to follow basic DOE standards and criteria relating to the common defense and security in this access rulemaking proceeding.
Of course, this cannot be the end of the inquiry, for what the law may not compel may nevertheless be comoelling for other policy reasons.
There are sound policy reasons why the clearance prograns of DOE and NRC snculd be n/
Ic. at 39 (empnasis added).
p*q 000 V
. reasonably consistent.
This need for consistency is most clear (and arguably mandated by the Ribicoff-Pastore colloquy quoted above) in the case of so-called " mixed" facilities where both DOE and NRC have sareguards duties over closely related activities.
To be sure the activities of NRC and DOE are in many ways different due to differing enrichment levels, materials, types of reactors, etc., resulting in differing degrees of safeguards that might be required in the interest of the common defense and security.
- But, still, there is a lot to be said in favor of an NRC access clearance program that dces not grant access to the same person who has been denied access by DOE, and does not restrict access to the same types of naterials to which DOE allows free access.
Moreover, as indicated above, in requesting the legislative authority for the access program the Commission, described the program that would be implemented if the legislation was adopted as the traditional Q and L clearance program.
The Alternatives Considered by NRC The hearing record contains substantial informatien regarding both alterna-tives to an access clearance program and the appropriateness of the access criteria in 10 CFR Part 10 should an access clearance program be found necesscry.
The record as a whole indicates that the Staff approached the proceeding with the view that there was merit in examir.ing alternatives.
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. Because the oral phase of this rulemaking proceeding was preceded by a notice and comment phase, various alternatives to a clearance program, most notably the use of psychological evaluations, were discussed in prior written submissions.
The Staff's contribution was SECY 76-508 which discussed the various alternatives and dwelt at some 1cngth on full field background investigations and psychological assessments.
This paper was included in the testimony the Staff submitted at the outset of the oral phase of the proceeding, as was the Staff's " Enclosure D" which was titled, "Need For and Efficacy of Psychological Assessment".
This submittal is quite comprehensive.
Board member Frings described it, without dissent from her colleacues, as "an excellent paper on the pros and cons of psychological assessment".23/
This belies the Board's broad statements that "the becord as it now stands does not contain a reasoned basis for concluding that a clearance program is suparier to other alternatives:
(Report 49) and that the " Staff's pro-posal dces not rest on principled evaluation of alternatives" (Report 52).
The record of the proceeding is replete with written and oral testimony, which as the Board itself acknowledged, "would lead one to con:Tude that the Staff proposed the DOE security orogram because it had evaluated other alternatives and found the existing 00E program to be superior on the merits."
(Report 'S) j: f hearing Transcript at 51.
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. True, there is some confusion in the record regarding the nature of the Staff's evaluation of alternative access criteria.
(See testimony of NRC Staff witness Jones at TR 537).
However, this has nothing to do with alternatives to an access clearance program, but deals rather with the access criteria that might be employed should an access clearance program be instituted.
Moreover, even as to alternative access criteria, the reccrd shows that the Staff did not proceed on the basis of some simple assumption that the law ccmpelled adherence to DOE criteria.
The Staff's direc'. test' mony (at pages 18-22) and the Staff's concluding statement (at pages21-243 cescribed the Staff's analysis of the criteria, discussed the question of ths relevance of criteria fcr an information access program to a materials access program.
The Board (Report at 71-72) acknowledged the Staff's effort to develop different criteria.
Finally, the Staff wishes to point out that the Board's own evaluation of alternative programs was flawed.
The Board adopted the proper approach in stating as a principle that the alternative with the least impact on First Amendment and privacy rights that would still achieve the ;:urposes of the rule should be adopted (Report 33).
Yet there is no analys.is in the Report which shcws how the Board's recommended program, wnich includes backgrcund investigations, psychological screening, and continuous observaticn, hcs any less i pact en these rights than the Staff's recomendaticr., which included only background investigations (See Report 33).
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