ML19247A676

Transcript of 790605 Public Meeting in Washington,Dc Re Hearing Board Rept in Clearance Rule Proceeding.Pp 1-42

ML19247A676
Person / Time
Issue date:	06/05/1979
From:	Bradford P, Gilinsky V, Hendrie J NRC COMMISSION (OCM)
To:
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ML19247A677	List: ML19247A676 ML19247A679 ML19247A681
References
REF-10CFR9.7 SECY-79-319, NUDOCS 7908010636
Download: ML19247A676 (43)

Text

9.7 +RTT9c s

NUCLE AR REGUL ATO RY COMMISSION r

IN THE MATTER OF:

PUBLIC MEETING DISCUSSION OF SECY-7.9-319 HEARING SOARD REPORT IN CLEARANCE RULE PRCCEEDING Place

'dashington, D. C.

Date. Tuesday, 5 June 1979 Pages 1-4 2

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'l 15213 DISCLAIMER This is an unofficial transcript of a teeting of the United States Nuclear Regulatory Commission held on Tuesday, 5 June 1979

__in the Commissions 's of fices at 1717 H Street, N. W.,

Washington, D.

C.

The meeting was open to public attendance and cbservation.

This transcript has not been reviewed, corr 7cted, or edited, and it may contain inaccuracies.

The transcrict is intended solely for general informational purposes.

As provided by 10 CFR 9.103, it is not part of the #ormal or informal record of decision of the matters discussed.

Expressions of opinion in this transcript do not necessarily reflect final determinations or beliefs.

No pleading or other paper may be filed with the Commission in any proceeding as the result of cr addressed to any statement or argument contained herein, except as the Commission may authorize.

42I 280

t 2

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 2

I 3 I PUBLIC MEETING i

i 41 DISCUSSION OF SECY-79-319 5l HEARING SOARD REPORT IN CLEARANCE RULE PROCEEDING l

l 7

Room 1130 8,

1717 H Street, N.

W.

9; Washington, D.

C.

10 Tuesday, 5 June 1979 11 The Commission met, pursuant to notice, at 1:45 p.m.

12 BEFORE:

I 13 DR. JOSEPH M. HENDRIE, Chairman 14 VICTOR GILINSKY, Commissioner 15 PETER A.

BRADFORD, Commissioner 16 JOHN F.

AHEARNE, Commissioner PRESENT:

17 {

I i

13 '

Messrs. Murray, Bickwit, S to ibe r, and Snyder.

19,

Ms. Nordlinger.

j i

20 i

21 e

22 23 421 281 24 T ;Mef al RdZr'ers, I nc.

25

CR 5213*

i 3

l I

e.r_ e_ R I

0-1 mte 1 CHAIRMAN HENDRIE:

Let us start.

1 I

l 2 ;l The subject this afternoon is the report of the j

I 3'

Hearing Board in the clearance rule proceeding.

The counsel's I I

I office has orepared a memorandum on the subject, andIguessisf a!

I 5'

.crepared to point out to us where we are and where we might i

6' go on this subject.

7, Perhaps I would do best in introducing the subject, i

I g,

simply to let Carl start.

I l

9, MR. STOIBER:

Marjorie Nordlinger was the lead 10 attorney on this, and if it's acceptable, she can take just a 11 few minutes to run through the alternatives presented in the 12 paper and make a few short comments.

l 13 CHAIRMAN HENDRIE:

Marjorie, why don' t you also 14 include a historical paragraph, pointing out where it all 15 started and what brings us here.

I l

16 MS. NORDLINGER:

Well, I did include a few dates.

l 17 '

I tbcucht they would be of interest, l

i 13 '

On March 17th of 1977, we published for public I,

19.

comment a proposed new Part 11 o f the regs, and that would 20 require certain persons with access to or centrol of special

m.,

nuclear material to have security clearances, and the rules established the criteria to determine elicibi.ity for such a

. clearance.

Then, due to the extent Of public interest, Cn

- -.,, ~ - -

25 Decembe r 2 3 cf 1977 the Commissica pubilshed

.c ice that there 1

421 282 l

l

1 m.te. 2 I

1 1

I I!

would be a hearing, and that notice enumerated seven matters i

2l or issues that the Commission deemed of particular importance.

i 3,

Cn April 7th of '73 there was a notice of the appointment of 4

the Board, and follcwing that the Board tcck over.

It set up i

5 procedures which allo'

' for the presentation of written i

l 6'

testimony.

And then there were hearings on July 10th, lith and l

7!

12th, which were in the main presentations of responses to the i

8' Board's ques'.icning.

l 9i The record closed on September 22nd of 1978, after i

l 10 l allowing for concluding s tatements, requests for crass-I 11 l examination.and so on.

l 12 !.

You might want to note that ;ust before the close i

13 of the hearings, on August 31st, the Commission asked the 14 Ecard, in addition to providing a summary of the record, to 15 give its reccamendations on whether or not the proposed rule j

i I

16 should b'e adopted and provided that the Board could give some-17 thing more than just a yes or a no answer to that, but would i

i 13 elaborate and say to what extent certain parts of the rule l

l 1

19 might be adopted or what kinds of changes would be mada I

i 1

20 The Board's report was originally expected within 21 1978, but there was scme slippage and it was filed on April 2nd:

22 of

'79.

And as you kncw, the Cctmissicn was at that time 1

23 l scmewhat embroiled in c:her T.atters, and somehcw cr ancther 24 ;

we seem new to be discussing what to fo with the reper: cp 7 E*Ce'3d Rf Do r'e'1, I nc.

'C until tcday.

57 '

421 283

~

J 7.t e 3 5

1 1

The report recommended that the rule ne; be adopted, l 1

l and at based that recommendation on a discussior. of some of 2

i the issues that the Commission said should be d ealt with in 3

the hearings, but principally the Board seemed tc feel that 4

i there had been a failure on the part of the staff adequately S

l to establish a need for the rule.

6, i

7{

CCMMISSIONER GILINSKY:

Coes this apply to clearances l

f r reactors as well as to the fuel cycle?

8 I

MS. NORDLINGER:

Yes.

9 COMMISSIONER GILINSKY:

They felt the need was not 10 11 i established in either case?

l l

1 MS. NORDLINGER :

They separated it, and most of the 12 l 13 l discussion was related to the need for reactors.

~

COMMISSIONER GILINSKY:

I thought, if I can find it ja 15 here on the fuel cycle case, they indicated no view here on i

16 i access authorizations for individuals who v.ight have control over special material in f abrication plants and other such j7

cases, jg j9 Coes the rule dis tinguish be tween the fuel cycle i

and reactors?

i 20 MR SMYCER-Noc as presently drafted, I don't believe.

w i

The interesting thinc abcut that ncnrecommendaticn 23 3u is, ycu asked them for a reccmmendation.

7 saceral Secor' Prs loc. '

CCMMISSICNER A:iEARNE :

And they addressed the h u ir.

e..c.l 1

42.1 284 I

i

ace' 4 l'

O i

1 i of the people.

l i

2l COFS1ISSIONER GILINSKY:

Why is it they made no t

3i recccmendation on the fuel cycle?

1 t

.t i MS. NORDLINGER:

I can't re sp onci.

I 5

CObeiISSIONER AHEAPNE:

I said they addressed the I

6l bulk, the major issue, the very large numier of pecple.

7 MR. SNYDER:

There's a miniscule nurler of people 8:

that don' - have clearances right now that are in our licensed 91 fuel facilities, i

10 COFSIISSIONER GILINSK':

But still, that's where the i

i 11 !

major problems are.

I 12,

COMMISSIONER AHEARb:'-

I don't think that the proposed l

13 rule specified that.

Me said address the impact of the la proposed rule.

The proposed rule swept a very large number of 15 people in. Or I should say, you set up the proposed rule.

16 j MS. NORDLINGER:

You have identified only one of 17 !

the problems so far.

i 13,

Furthermore, the Board seemed to feel that the i

19 hearings had failed sufficiently to examine what might be I

20 alternative programs, and that this was in part or largely a I

result of an analysis that led to the conclusion that the 21 l 22 j NRC could not provide its cwn pr: gram, but had to fcllow the I

This wculd 23 program established 'cy the Secretary of Energ';

l a ternatize

,4 seem co ce related c.ctn to a 22.scuss'.cn c:.

I 103 E *C*' N 4 *D0 f tt's, ! ('C.

l 25,

c. ro c. r ams and to a.iscussica of the criteria ch a t iculd he 1

421 285 I

7 mec' 5 I

used under an access program.

2 So that the Board seems to suggcst, through its i

3, report, that the view that the Commission is not able to 4l establish its own criteria and must follo./ the Secretary of S

Enargy led to an insuf ficient examination of alternatives,

i 6l both in the larger scale of what other possible f o rms an 7!

approach to safeguarding these materials could take, and also I

8l with respect to both the specific alternatives in dealing with t

9l the actual criteria if it were established that a clearance l

10.

program based on a field, a background checkup, should be the t

11 {

best route to follow.

I 12 l And there were a few other small points that the 13 Board also felt had not oeen fully addressed during the la proceedings.

15 l We, after reading the Board's report, felt that the t

best thing to do at this stage would be to ask for the staff's 16 li l' ;

comments on the report, and to see whether or not the staff 7

f i

i 13 '

felt that there had been an adecuate cresentation that the i

I i

19 !

record was suf ficient for a rule, admitting or allowing at j

1 2C that point that there might be possibilities that the staff I

i l

l 21 would want + o add to the record, and that then we might call 2: I for comme.n_s frcm the cther carticirants in the proceeding for l

3 any new information on what the staff's cubmission was.

2nd 1

after that, the Commissicn micht he crera-=~

-^nsicer a :, t ec e a t a eper+ers. Inc. j 25 ' whethcr or not it was gcing to adcpt the rule er any par cf it.

421 176 i

I

.I

mte 6 3

l 1

COMMISSIONER AHEARNE:

I guess I'm sort of put2 led j

l 2j by that, because we set up a Board and they addressed in part 3i the people that were parties to it were the staff, and they 4

addressed the issue and concluded that there was inadequate 5

information presented to make the case for the rule.

And so 6

I'm a little pu : led by why we would go back to one of the l

l 1

7l parties and say, well, do you agree with the Board.

)

8i MS. NORDLINGER:

Well, this is an informal rule-9 making, Commissioner Ahearne.

And we cid not commit ourselves, i

1 10 !

so far as I am aware, to allowing tne recommendations of the I

11 l Board.

17 f COMMISSIONER AHEARNE:

No, my question was more, I

i 13 do we think that the Board was inadequate in their review?

14 l MS. NORDLINGER:

We ll, I'm not prepared to answer 15,

that ques tion.

But I did think that it was cssible, given e

i 16 the fact that the sta;f's performance was brought into 17i question, that they might want an opportunity.

An le it 18 seemed that it would be possible to invite the comments of i

i 19 all the participants at once, which has been done, for instance, i

20 in the S.

1 proceeding, I believe, in this case because the 21,

staff's performance was more at issue, cr that was where the 1

1 22,'

insuf ficiencies o f the 3 card -- that the 3 card saw seemed :

.I 22 !

lie, it seemed more reascnable and.: would result i.- a ict 1

1 24 less paper moving arcund _f we asked the staff to respcnd i

• CT EfCef > AeDCr'ert. ! ac.

25!

firs t, and then allowaa

'es to respcnd :

what the the-=BT 421 2

1 l

.te'7 ll 9

l l

li staff had to say, because that was really where their interest i I

i 1

2 was going to lie.

i 3 !

CCMMISSIONER AHEAR"E:

But I guess my question would i

4ll be, it appeared to me in reading it that the Board had made a 5,

very specific recommendation based upon the conclusion they 6

reached.

I thought the conclusion they reached was that --

i 7!

they had two parts:

one was theca was an inadequate justifica-I f

3l tion; but then the second part was, the crux of the issue was t

9lj whether or not we were required to use the DOE s tandards.

If i

10 l the answer is yes, we are required, then consideration of II other alternatives, they said, didn't make any sense.

And we l

12 !

could either accept those standards or else go for other 13 legislation or get COE to change the standards.

14 If the answer was no, then there was an opening i

15 ground to consider te rnatives.

And their reading -- I think 16 l they say in here that the staff admitted that they didn't --

l 17 i on the last day o f the hearings, the staf' admitted that they I8 didn't really consider alternatives, they didn't evaluate I9 alternatives acains t the COE.

l 20 And the Board gcas on to recommend that the Commis-1 2I i sicn ask 2:s staff co evalua e that legal question:

Do we or 22 do we not have to follc:i :ne CCE criteria.

i 22 so I cuess had ex;;cted the crincical initial step i

l t0 be asking the general counsel Oc answer that q ue s r.i c n,

---4:e at R e::e r m. I N.

23 4^~

rathe r than inc thr0uch anc the r c

le o n 421-the Car'TfB 2

~

~

~

t

.te ' 8

'l 10 i

i involved, and did the Board reach the correct conclusion, since!

l 2i the Board specifically reccmmended we do something.

And I i

3 thought we had to face that question.

1 I

4' MR. BICKWIT:

The Board also concluded that it was 5:

not addressed to the extent that they would have liked to have ;

s I

6' seen it addressed.

7!

COMMISSIONER AHEARNE:

Well, I would, as at least i

S' one member of the Cctmission, I would turn to my general l

9l counsel and ask.

A Board has recommended the address of a i

i 10 I legal question.

I would turn to them and ask them to address i

11 !

that legal question, because in some sense the other element l

12 of the legal part of the Commission staff has already addressed i

13 ;

that question.

I 14 l MR. BICKWIT:

The Board concludes they haven' t i

15 l!

addressed it adequately.

l COMMISSICNER AHEARNE:

Right, but they have addressed 16 }'

i 17 '

it and provided their advice to the staff, who then went into I

I IS this hearing.

3 t

l I

19 i MR. BICKWIT:

I think it is a small point.

I agree i

20 with you that you ought to have the benefit of the general 21 ;

counsel's o f fice j udgment.

But it seemed to us that.: wculd l

~'t 22 l be helpful in rendering that judgment to aave a staff analysis.

'l 24 j CCMMISS IC::ER THEAR:iE :

Are ycu sa;.ng, then, the

., :.c eo, p evans a,. -:

1 25 l CcnClusiOn 700 reached was we Ou['.t to ask E'3 Oc g rO'. ide an i

421 289 l

mte 9 i

11 analysis of whether or not we are required?

9.!

MR. 3ICKWIT:

Yes, as part of an additional c.resen-1 3l tation.

'CCMMISSIONER GILINSKY:

Are we basically talking 4

i 5

about clearances for reactors?

Because from what Bernie tells 6'

me, the fuel cycle is effectively covered.

7 MR. SNYDER:

I don't know how effectively it's covered.

But I think in terms of numbers, there is a very 8,

I I

9 high percentage.

10 CCMMISSIONER GILINSKY:

In the process of assigning i

11 :

that security classification to the f uel cycle.

i l

1 12 MR. SNYDER:

That was approved by the Commission.

l 13 It was back three or four monchs ago.

ja 7 CCMMISSIONER GILINSKY:

That only deals with 13 information.

I' 16,

MR. SNYDER:

Yes, sir.

i i

17 !

CHAIRMAN HENDRIE:

That is, we declared that things 18 like safeguards -- accounting information, security plans,

I 19,

physical security, associated studies in connection with those t

i 20 materials at fuel cycle facilities -- to be national security in f o rma ti o n, and anvbcdv that must have access must have a

.i.

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C e_ a, a,~ ~ ~e: m.-~R

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tha:

catex t.y.20

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9. 1 We fOund that Oost Of the CeCOle alreadv there have that i

l

.t

-cer si A exrte s. 'ce.

25 national clearance.

421 290 i

.I

r.te 10,,

i 12 i

l 1 i CCMMISSIONER GILINSKY:

Presumably people working l

l 2!

there know where all the material is and they're already i

3 covered by this.

1 l

4 MR. SNYDER:

No, no.

That is for information.

5 CHAIRMAN HENDRIE:

Hols on.

It is for information, l

6 not access to material.

7 MR. S NYDER:

It is not access to material and 3'

production on the floor.

That is what this is about.

"his 9

is access to physical materialc.

That is why.

They tend to l

10 [

overlap, but they are two separate things.

It wouldn' t neces-i 11 !

sarily follow that a man who has clearance to access fcr I

12 '

information would have access. to the material.

I 13 COPMISSIONER GILINSKY:

I guess I always looked at 14 it the other way, that we had an opportunity to arrange for I

i i

15 l clearances to cover access to material; I felt that would I

l 16 cover access to information.

I 17 '

MR. SNYDER:

A production worker doesn' t necessarily l l

1 1

is have access to all of the security plans.

I i

19 ;

CCMMISSIONER AHEARNE:

But a production worker at a l

)

I 20 '

fuel cycle facility, dces he not have a clearance?

2:

CHAI2 MAN HENDRIE:

He T.ay o r he may no t.

MR. SSYDER:

Well, if they are a ICE contractor, i

3,

chances are ten to cna tna: he will.

CcMMISSICNER 3:LISSEY:

.le il, there's seme.-*ng to 24 l D A*Cer 3t 9 ecc r'ef t, ?"C.

S ; he said for just a single system.

421 29I f

mte' 11 13 i

il' CHAIRMAN HENL. s:

Well, we' ve always agreed that if 2 !

there were going to be clearances at fuel cycle facilities, 3,

because most of those that deal with special nuclear material, 1

4.

with the highly enriched material, are DOE concractors, and 5,

there the Department of Energy requires clearances of its i

6 contractor employees to have access to that material.

So that 7l means that a large body, if not all, of the employees of these l

3!

facilities get cleared because of that requirement.

And we t

9l

h. ave always agreed that if the residual group o#

_oyees at i

10 '

these facilities that handle sensitive material were to be l

l

'l ;

cleared for any reason, that it would be the same system, the 12 national security system.

I think we've always agreed.

13 Now, at the mcment there is the requirement in a la fuel cycle facility, to the extent there are DOE classified 15 ;

contracts, that the group of employees that touch those be I

la l cleared.

Then we have said t security plant information and i

17,

material accounting information is classified.

So here is l

l 18 '

another group who may -- who may not be completely idencical 19 with the first group, but an additional circle, you see, in i

1 20,

which there has to be cleared.

l 21li That dcesn't necessarily get eve rybcdy at a fuel 4

22 cycle f acility who is a regular empicyee.

I l

] !

CCMMISSICNER AHEAF::E :

t scunds 11.< e

_t gets 1

24 eve rybcdy whc has either access tc material c r access to u.:-wai :t ececm. w Jewm, *] g g 7

• C

-m 421 292 O

ate 12 14 l

l, I

l l

1 CHAIRMAN HENDRIE:

No, because if it is not DOE 2

hydrogen-enriched macerial, if it's on its way to Fort St. Vrain, 3

for instance, it doesn' t f all under either of these things.

In i

4l order to get that last group, why, you have to have clearances I

i 5:

for access to special materials.

1 6

COMMISSIONER GILINSKY:

I guess I propose that we 7

solve that prcblem and separate it from reactors.

8 C:RIRMAN HENDRIE:

I think whatever we do in terms 9

of going forward with this initiative or the of fspring initia-10 l tives, indeed, that it ought to be separated.

In many ways 11 it was odd offspring included in here, because of the i

12 !

general phrasing of the proposed rule.

But this proceeding' 13 has essentially not dealt with those remaining relatively few 14 employees at fuel cycle f acilities handling sensitive materials i

i 15 !

in any substantive way that I know of.

l i

I 16 And as a ma'.ter of fact, because the record and the 17 recommendations fo the Board here run so much to the reactor i

I 18 i side, you could either start another proceeding or have a 19 no tion that the Commission has the authority to just go ahead 1

l 20 and say national security clearec.ces for access to material in -

21 these facilities.

22 That is, I think we could separate that junk out and 1

i 22 1 just go ahead and implement 1,

and I doubt that there would i

,l be much.

a

-2.:.e e v = eae, ers. mc. '

MR. MCRRA:.

Mr, Chairman, althcugh the Scar didn't 421 273

mte 13 15 i

focus much attention on the fuel cycle facilities, the evidenceI 1 3a a

,d in the record is enormous on fuel cycle r.acilities.

t 3

CHAIRMAN huMDRIE:

I should have said that.

I'm i

I sorry, I should have said that.

What I meant was that the 5,

comment to the contrary is essentially, is very limited.

The l

l 6

Board hasn' t said don' t do that.

7-COMMISSIONER GILINSK':

I guess I'm rather surprised i

i that the Board concluded to have no reccamendation on the f uel g,

I 9,

cycle clearances.

I find that rather astonishing.

i 10 CHAIRMAN HENDRIE:

I think they saw it as more of i

11,

one package,'and the major part of the package seemed to them i

12 to have problems with it.

So they felt unable to deal with i

13 i it.

la l COMMISSIONER GILINSKY:

Well, it makes me wonder I

15 '

what they weru doing if they couldn' t separate out the two i

16 I pieces.

I i

17 COMMISSIONER AHEARNE:

What were you people doing i

l i

18 I when you put out that rule' You put out a rule that lumps all d

i 19 1 these pecple together and asked the Board to analyre that.

I 20 !

just read the Federal Register notice that is the instruction i

!l to the Scard, and t doesn't say Here is this small group i

which are the mos t important enes.

I +_ just lumps these three classes tcgether, the third class ceing transpcreatica pecple.

22 CHAIEMAN HE2IO.CI E I think, as I kSep cCmmenCing, I 1 "1!-E 9de'31 EeDortCF1. IN 25 have a hindsight, practicallf inccrparable 5 ndsigh:.

And 421 294

~

r.te 14 il 16 i

i it's clear thac at the time we askcd them-you remember, we i

i 2l added the recommendations recuest at a later stage, and I 1

3 daresay at that time if we had gene on and elaborated a little 4'l and said we would really like to have those recommendations bit i

5 separated in terms of the various kinds of facilities, that i

6 then we would have gotten that sort of response.

7 COMMISSIONER AHEARNE:

The report indicates that the g

s taf f ha,i indicated there were j ust a very few pee

involved.

I 9j MR. MURRAY:

I think one explanation for why they 10 l were short of evidence on the fuel cycle side, notwithstanding l

11 ;

the apparent error there, is that they had dumped all over the i

12 l criteria and the criteria are common to both, i

13 l COMMISSIGI:ER GILINSKY:

My reccmmendation would be la to fix up the fuel cycle side and set the reactor part aside.

I 15 COMMISSIONER AHEARNE:

Dces anyone kncw what this 16,

un2.__se of uncovered people are on the fuel cycle side?

i 17 i MR. MURRAY:

It is probably no more than a couple of l

i i

ja hundred.

i 19 VOICE:

It is abouc 25 percent of the pecple that I

20 are in the production side cf the fuel cycle facility.

Now, i

21 I don't know in terms c f gross numbe rs.

I can't tell you.

1 3-22 1 Sut ic is 3rcund a Couple of ".undred.

I 23 !

1 421 295 u1 n Acce si 3ecorters, m: }l 25 !

i

CR 5213 17 HEER:jwb l a,,

I l^

MR.

S'iYDER:

We have those numbers.

We can get

~

2, the m.

i 3

VOICE:

Dependinc_,.upon how that requirement is i

4l written, though, we have to be very careful with regard to 5

these now 29 research and test reactors that we have discovered, t

6 COMMISSIONER GILINSKY:

We would have to include 7:

all facilities above threshold quantities.

l 8'

VOICE:

And those impacts may be beyond this 9-couple of hundred.

i 10 !

MR. SNYDER:

That wasn't considered in our 1

i 11 '

hearing.

I2 '

COMMISSIONER GILINSKY:

Well, we have a problem.

i 13 !

But they have a problem that they are fooling around with I4 plutonium and highly enriched uranium.

15 l COMMISSIONER AHEAR'IE:

The research and training 16 !

reactor was considered.

I7 '

MR. SNYDER:

But not to the extent -- the Staff

.i s.,

has only recently identa.fied a larger number.

We used to l

i l

I9 talk in terms of six, and now they're talking in terms of

'O tnat.

ve times 21 m <.., * - - m, -.q

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.wo am.,

i

-, l M2. SNYDER:

Yes.

n just came up a couple of

"- ]

1

'3 weeks agc.

i 4

a_M.

yp qb% y 9

]

-- av

,r***

f

1. 98

.{****^.. _ 0 0. V. 'e _".N\\

,J.

..e'Q" A'.;

L v.6'

t -~: erst 3 emr'ers, f oc l

'...e a

w.4a C

,,4_,9 N-

'S be: ween the

.a terial

,c r l'i ems and the reac:Or clearanc :s f: r l

l 421 296 i

2-2 jwb 18 I

i 1]

facilities handling formula quantities of strategic nuclear 1

materials 2:

those reactors which don't.

2 3'

COE1ISSIONER AHEARNE:

Could I ask another back-i t

4 ground question, if I can, since I wasn't here when this rule i

5 first went out to be addressed?

What was it that 'ou hoped v

i l

6' to resolve?

i 7!

CHAIM1AN HENDRIE:

Well, among other things, there I

t I

8l were the questions of implementation and what it all mear.t t

9 under 355.

One of the questions was:

There, would not a I

I 10 substantially more rigorous program of examination of the 11 antecedents of employees who were in a position to be close i

i 12 '

to vital areas be very useful?

13 And the thought was:

Yes, indeed, it may be; but, l

14 '

on the other hand, there was recognition that you then brought 15 j another, I don't know, 15-cdd-thousand people under the 16 l. national security system, if these clearances were national l

l 17!

security clearances.

13 i Ncw one time I managed to get, cn a mu.ed vote through l

i 19 the Ccmmission, a legislative prcpcsal to go up and establish l

I I

20 i. thac authority -- under the law, to establish a clearance j

i 21 ' orocram on a health and safety basis, primarily, so that you l

22 l could adopt your criteria for clearance for that purpcse and 22 not have to have

_t identical to the classical national 24 securit. 2ccess :: _uy '.aterial standards.

And we get tha

3 ? cc.3 aem, e,s, &c l 25 to Ccngress, but 1: didn't go anywhere.

And subsequently, since 421 297 I

,2-3 jwb 19 1,

the clearance part of it seemed to be the most controversial 2h area, we lopped that part of f.

The rest of it was that i

i 3,

proposed Part 147, which was reschmitted again this year and i

I 4l is actually in the House Authorization bill as an amendment.

l 5

COMMISSIONER AHEARNE:

So there was some concern in I

6!

the original putting out of the prcmulgation of the proposed I7j rule for the safety of reactors?

8 CHAIRMAN HENDRIE:

That was the primary thing.

9 MR. MURRAY:

The original Notice of Proposed 10 Rulemaking contained the following sentence, Mr. Ahearne:

I 11 !

"These regulations are being prepared to utilize the personnel 12 !

security program as a measure to protect against those i

f employed in the effective nuclear activity who might conspire 13 14,

to steal or divert scecialized nuclear material, or conduct I

i 15,

sabotage which would endanger the public by exposure to l

16 '

radiation."

17,

COMMISSICNER AHEARNE:

So I don't think we can jus t 1

l l

13 -

put aside -- and I think if we are putting aside completely 1

19 l the question of reactor clearances, I think that we are going l

t 20 '

tco far.

i 21 I think we have to take scme fur-her steps, and 22 so I wculd end up getting back to -- and I'~

.ot sure whether l

23 it is a request to the General Counsel, or a request to the l

24 Gene ral Cc unsel and ICE, or a request that they review to wev 9,0ccen. me. !

25 l address that legal issue that the Ecard though t was fundamental 42l 298

20 2-4 jwb I

i I i to take that next step as far as reactor clearances are 1

2' concerned.

3l MR. SNYDER:

I would like to remind the Co.~. mission 1

1 4l also that there have been some deferrals of things like pat-5l down rules for reactors pending the outcome of this.

6l' CEAIRRM1 HENDRIE :

John, that question we could i

I 7!

usefully have an opinior..

I think we already have -- I i

8l do_n_'t know whether, I assume the comments of counsel that 9

they reflected the ELD's position, I don't know that there's 10 [

any question in going back and asking ELD:

Do you agree with 11 what you said at the hearing?

12 MR. MURRAY:

Well, we could probably provide you I3 with more comprehensive explanation in a concise fashion.

I4 CHAIRMAN HENDRIE:

Well, that is possible.

But 15 I think if you' re going to ask some more lawyers about it, t

i 16 l why maybe we ought to ask the crowd who hasn't committed I- }

themselves and see if they agree.

')

l l

I8 '

They could always go and ask Jim what the bette-t 10 reasons were, but it appears to me rhat that question in fact i

I

'O is a little narrower than it need be for our purposes.

It was correctly phrased by the Ecard in the context of this

'l I

l rule, because cf the way in which t?.e rule was phrased, which 22

,, 1 was to cse 161(i) o f the Atomic Energy Ccrmission authcrity I

for this clearance, and sa; -- and progese a rule that said

-..: cem s emn, $. inc. i n; I

~~

reactor pecple : ave r.ational security learances 2nder the 421 299 i

l

21 2-5 jwb i

1 I

I authority of 161(i) of the statute.

2:

Now indeed it seems to me vou could still ask, if I

i f

3 we went that way, do we have to conform to the set of I

f!

criteria that COE uses?

And I don't know how that comes out.

5, My guess it. probably "ya," but that is a total layman's 6

opinion.

7i COMMISSIONER AEEARNE:

I think there is another l

3j legal opinior that says "no."

I i

9:

CEAIRMAN HENDRIE:

But it is a muc'.1 less interesting i

answer, to me, than the ansvar to the following question or 10 '

II questions:

At this stage, with the Board having said, i

Look, the rule as proposed, at least as regards reactors, I2 I3 does not seem to us to have been adequately supported, and l *' I t

there are a number of problems, and we recommend you not rush 1

15 !

into this, i

f 16 f The Commission, nevertheless, has before it aspects L

I7 of trying to' provide sone reasonable framework in which people i

i i

13 l at commercial pcwer plants who have access to the guts of the l

i I.

I machine may reasonably be thought to be a stable and reliable I9 I

l

'O employee or tn.e operating organization.

21 New vcu don't need national security clearances to i

,,l do that, a number of pecple have said.

Sc quite apart frcm l

"I what 161(i) says about access to special nuclear material,

,'t!

4 I would ask.

s

_t not well within the pcwers of the a ! #M eras R eco r*Cf t,

'.r C..i l

o Cc==1ssica, wcure ycu th1ak, :o write e=e reau12:1:n 21 =e

==e 421 300 1

22 2-6,jwb f

i l

I i

I lines or the Board's recommendation, saying that employees l

l 1

)

who have access to vital areas, there should be suitable

.4 i l

3l background screening by the employers, by the licensee who is l

J the employer of thesc individuals?

5 And the rationale to this is, you would just as 6

soon they did not create sabotage, and thereby raise health i

r 1

7' and safety problems, or questions outside the boundary of 3

the site.

9 Now maybe if the answer is "no,-you can't do i

10 !

anything like that unless there is something specific in the i

II l statute," why then I will think again.

But it would seem to i

i 12 '

me that under the general health and safety mandate, that as I3 long as we don't get too close to national security clearance i

14 ! kinds of things and amplified and uniform application of I

i 15 l ANSI 1817, is it? would be a thing within our rulemaking 16 powers.

I7 MR. SNYDER:

The prchlen is, the ANSI standard I

i i

1 I3 that we do invoke is nonuriformi acclied.

And there are f

i, i

apparently some dif:1culties in some cases.

l 19 '

20 CHAIRMAN HENDRIE:

What would you think dcwn at that

'l end, or at that end either?

l MR. MUESAY:

I wculd think that the Supreme Cour I

,,1 case of Snyder 'tersus Schmit: wculd send us 20 get the a

Spec 1:10 statOOOry authority and T.ight give us a problem.

e, i

-aFacerai %xrte 5. Inc.

We're dealing with First Amendment rights, nd th 5 preme

• C 1

23 2-7 iwb i

l l

1l Court seems to say that you need specific authorization.

I l

l l

2!

don't think it is ali that clear, Mr. Chairman.

l 3

CHAIRMAN HENDRIE:

Can you get me out of that?

4!

MR. BICKWIT:

Not at the moment, no.

161(i) by 5,

its terms does extend this kind of thing.

There is no doubt i

l 6

about that.

But running into constitutional intercretations 7:

can cause problems.

i i

3 COMMISSIONER GILI'ISKY :

Does 161(i) give you 9

authority?

10 '

MR. k:URRAY :

We think it clearly does.

I was II !

suggesting the Chairman's point.

1 I2 !

COMMISSIONER GILINSKY:

Oh, I see.

Apart from I

i I3 161(i).

14 CHAIRMAN HENDRIE:

Because if I go with 161(i),

i l

i 15 then I am hung with the answer to the. question :

Are you then t

16 l required to follow the criteria established by the old AEC i

17 i and now used by the Department of Energy in implementing I

I 1 *0 '

clearances under 161(i) ?

I 19 l

COMMISSIONER AHEAFliE:

That's true, if you take i

?,

,o that legal position.

That's why I say we ought to ask, l

.i i

,)

because that's what the Board said.

I t

aq t

CC:L'ESSIC:iER GILI:: SKY,

These are the ones in i

--"l Part 10?

g i MR. ShYDER-Yes.

.7 d ** e r 2' Reporters, f ec, r

• C Lf'.AI2)bkN N.5 E)EIb '

YCC ONinN We'i UO7e CICCDie WlEn 421 302

24 2-8 jwb 1;

a "L it. which just said " operating employees who have access i

2 to vital areas shall be" what? " selected"?

" screened on the i

3' basis"?

l 4'

MR. MURRAY:

If you're going to set up a clearance l

l 5

program for these employees, I think you would have trouble 6i unless you based it on 161(i), because of the decisions of i

7!

the Supreme Court, which seems to say that you need to have l

8 specific authorization in these areas -- specific statutory 9'

au tho riz ation.

s i

10 MR. BICKWIT:

By the way, I don't think the i

II !

Commission ought to be basing its judgments on his representa-I, 12 1 tions at this point.

I 13 MR. MURRAY:

I put them before you with all 14 modesty.

15 MR. BICKWIT:

Until others have a chance to comme t.

16 CHAIRFJS HENDRIE:

I recognize that.

But for 17 i purposes of discussion, I think it is a helpful illumination i

i i

e 18 :

as to whether the orablem areas mav lie.

Let me ask tha t

i I9 following:

20 The Commission, I wculi judge then, suppcse we

'l cane cut and said persens with criminal records, including

,2 4

two or =cre tiolations abcVe a certain threshcid of secerity, 23 1 ought not to be employed in vital areas o f pcwer plants?

i a

N-l

. suppose, s i m i. a r _,;, 1:_ we passec a regu_aticr j

i e

,c o a ez r m t : nc.,

z "I

s a'/ inc that Certifiablv insane Cer3cns cucht "Ct to be t

l

~

421 303

25 2-9 jwb 4

i l

l I

employed at these plants, that would also run into precisely 2,

the same authority?

l 3'

MR. MURRAY:

No, I think not.

We are talking about I

l I

4i a full-blown clearance program based in the traditional way i

5l that those clearance programs are structured.

o!

CHAIRMAN HENDRIE:

Well, how abcut 1817, the ANSI l

7 s tar.dard?

8 MR. MURRAY:

That is a clearance program.

9l CHAIRMAN HENDRIE:

What do we say in the regulations i

10 !

now?

II MR. SNYDER:

I think there is a reference to 1817.

12 CHAIRFAN HENDRIE :

Is it in the regulations?

13 MR. SNYDER:

I' m not sure.

I4 ChAIPl4AN HENDRIE :

Or is it in the standard?

15 MR. SNYDER:

It is a Rog Guide, I guess.

16 CHAIRMAN HENDRIE :

There.

That solves the problem.

I l

17!

We.iill put it in the Reg Guide.

That is not a regulation.

l 4

I f

I3 MR. MURRAY:

Mr. Chairman, to the extent that you i

i I9 could distinguish between a reliability standard on the one i

20 hand and a clearance program on the other, I think that a 21 reliability prcgram could be suppcrted.

22 But you can get in to shady areas there.

I 2

r. O.M.i f..*..; ;

• m s '.r_.o-o.

o..m

-b 31:r * ;* Lr

_4 _.r.

8 _.6.4..'<

o 4

._e...

try to

'e.".d Wc r ds arOund then We'r0 real.y '.!;ing 00 set lp x *ecer as R epor ers.1oc.

aC sc=etning speciite.

421 304 I.

2-10 jwb 26 l

ll MR. MURRAY:

Some of the things you mentioned were l

2 in the nature o. reliability, and probably would be okay to i

3!

set up as a standard, but they don't alone constitute a l

l 1

4 clearance program in the way that phrase is normally under-5!

stood, l

1 6

CHAIRMAN HENDRIE:

I guess I don't quite understand i

7l the difference.

i I

8 CCMMISSIONER AHEARNE:

As you say, there are at 9l least two legal questions.

And one is:

Can you set up that I

10 kind of an altarnative program using other than 161(i)?

And i

II !

if the answer is "no,"

then there is also that other question:

I 12 l Can you, in 161(i), do we have to pin ourselves to the DOS 13 standards?

I4 COMMISSIONER GILINSKY:

There is also another i

15 '

course which is to talk to DOE about these criteria.

Have 16 they shown any interest in modernizing their criteria?

17 VOICE:

2:

presently do have that under 2

I8 I review, and we have met with them and discussed it.

They l'

i i

lo are taking another look at it, and they have a study to "O

look at that, and they are supposed to ge: back to us shortly, j 21 We don't knew hcw quickly they will move.

22 NOICE:

Mr. Commissioner, as of this morning

,, i we expect a study from Eatteile on the Orl:eria to octe l

.m is:eral Pe ceen, :m to lock 2: their information within a mcn:h cr so.

ICE alans 25,

criteria regulations wl:hin a year, c r. d enen :nelr access i

1 l

421 305 e

2-11 jwb 27 1

l authorization regulations within the following year.

So 2

within twc years DCE expects to have revised regulations.

3 ha. SNYDER:

I have a feeling that two years ago 4 :j they told de they were going to look at that, at least two 5"

years ago.

6!

CHAIRMAN HEND. ':

Two years ago we were looking i

I 7lI at it, eco.

The problem simply is that it is one very 3

diffice.t proposition to write down a set of criteria for 9

what yor are going to look for in culling through a background i

N!

information on an individual and deciding does the indisidual i

II then fall in or out of the acceptable category.

i 12 ;

And no matter how you cut it, you're going to end 13 up with argument over those criteria.

And maybe some of the 14 ones that were instituted a quarter of a century ago will i

i l

15 get a rewording and change.

But I will bet you a cookie 16 there will still be a lot in there to give at least some 17 people agony and create difficult cases, and so on.

I I3 l It just is an awkward matter.

I'm not convinced 19 that for reactor or plant employees you need quite the same i

I r

sort of thing.

At one point I thought that, well, okay, if l

20

'l this clearance system -- it is a system which is in existence.

22 I don't kncw, there must be a third Of a million pecple whc 1

" I have chese clearances now.

i 94"I It seems to be wc:kable, but I would say it is iCt J fCer 31 ReNr'ert, lec.

m i "g

the only system for trying :: improve jour assurance of i

421 306 i

l

2-12 jwb 28 l

1 f

I' reliability of employees.

And I'm perfectly willing to go i

2l off in the direction of some of the industry standards on 3

reliability testing, or review of things that have been 4'

suggested in this proceeding and in the literature on this 5 j subject.

6!

Col 1MISSIONER GILINSKY:

Well, that is what has 7.

been going on.

8 CEAIRMAN HENDRIE:

It is what has been going on, 9,'

bu: I can see a certain..nount of difficulty lying before us.

i, 10 l If we establish requirements that utility operating organiza-i II I tions be staffed according to these kinds of measures, and 12 that requirement or -- in quotes, now, you understand -- is i

13 l in staff positions and staff guidance, and we decide that it l

I Id !

can 't be implemented with the regulations because it is 15 illegal, I've got a notion that puts the Regulatory Guide 4

i 16 j and the staff positions in some doubt as to their implementa-17 !

bility.

I 18 So I don't think just saying. well, it's too hard 19 a problem to deal with in terms of regulations, in view of

^0 the legal problem, so we will just forget it and let it I

i 2I drift, in the terms of let the staff nct tell us what they're

'2 I

doing, but go ahead and do it, I don't think that washes.

i

'3 Sc I think we have to deal with it in some way.

4 e.

"i COMMISSICNER.' HEARNE :

I scunds familiar.

3 - e ed er al A epr]r*e rs, ! #%*.

I

<l CEAIRMAN IENIRIE:

There are these twc questions

~

421 307

2-13 jwb 29 I

t I

Ill that we have sketched here about what legal sci.olars would i

t I

2l deliver up on the matter.

And I guess there is a third l

i 3f question I would ask, which is only partly legal, and it 4

relates to what Jim Murray said.

5 And that is:

Could somebody sketch out for us what I

6 a reliability of the employec's program would look like versus 7 l a clearance program?

So that we can see if indeed we perceive 9

any arguable dif ference between them, and then might find that 9

indeed a reliability of the employee'c program is within the 10 l authority of this Commission to write rules about?

II And then we could think about it a.long those lines.

12 MR. MURRAY:

Mr. Chairman, we're not telling you 13 that you don' t have authority to write a clearance program.

Id COMMISSIONER GILINSKY:

What is this hangup about i

15 l criteria?

I i

16 '

MR. MURRAY:

We believe that the better view is p' ij that we probably have to stick pretty close to the DOE 18 l crat3ria.

19 '

l' l

CHAIRMAN HENDRIE:

Well, that is a thing --

20 COMMISSIONER GILINSKY:

We would be interpreting

'1 them, in any case.

22 CO:JMISSICNER AHEARNE:

That's true.

But why can't

,3 l we implement the mass security clearance progrtm f;r that, i and I hace ve can identifj wnatever that aniverse is that

.a.seeerai nexcert

,m.

4e i "l

handle fornula quantities and material.

q 421 308

2-14 jwb 30 l

l ll CHAIR:!AN HENDRIE:

That is a se0 arable item.

i 1

2l COMMISSICNER GILINSKY:

Why don't we deal with the t

3l problem that we all agree really needs to be dealt with?

i n

4 COMMISSIONER AHEARNE:

That is part of the problem i

5' that I hope we all agree needs to be dealt with, and I think I

6 we ought to do thce.

And in addition, I think we ought to i

i 7l ask the General Counsel to tell us whether or not we have to i

8 follow the DOE criteria.

9f If, as I suspect, the answer might be not, then i

10 !

there is a reasonable caternative.

I II I COM:11SSICSER GIZINSKY:

Well, let's do that.

i I2l Develop a p;.an for dealing with the fuel, cycle and ask the 13 General Con cel whether we need to follow the DCE criteria.

Id COMMISSIONER AHEARNE:

Because the Board has come l

15 j up with c proposed reasonable alternative.

I t

j *e '

i CHAIRMAN HENDRIE:

Well, I must say, it seemed to I7 me that the Board was pointing in a reasonable direction.

I8 Let's understand what we mean by " fuel cycle facilities."

i l

i i

I9 COMMISSIONER AHEARNE:

I said, " facilities to handle; l

'o v

strategic cuantities.

l 2I CC".MISSICNER GILINSKY:

That is 5 kilogr :s ar i

"l abcVe.

1 23 COMMISSIONER AHEAR'IE:

In fact, the 3 card said i

i the research recale acreed.

.?-dectf3t EeDOf ters,19C i

~

~

5 COMMISSICNER CILINSKY:

Why would you treat them i

i 421 309 l

31 2-15 jwb l

1 i

If any differently?

l i

2l CHAIRMAN HENDRIE:

The Board said, "do something i

3 dif fe rent for them," as I recall.

4 COMMISSIONER GILINSKY:

I don't think they address i

5 this whole area very clearly.

6' COMMISSIONER AHEARME:

It said, "The staff stated 7!

that it was their intention to apply the rule only to those i

3 in research and training f acilities that possess formula i

t 9'

quantities of special nuclear material, because most of the 10 effects of research and training reactors have agreed with 11 the prcposed revision.

The Board recommends adoption."

end #2 12,

I i

13 1 i

14 l+

l l

15 l l

I 16 ;

i l

17 l 18,

j i

l I

19 i

20 21 1 22 23 bl0 m e,w w mare er,.

25 1

i i

Il

CR 5213 i

T.' 3 l

32 i Gsh 1 l

4 i

s 1

CHAIRMAN HENDRIE:

You would propose to clear all l

' h of the professors, students, and employees at a university i

3 research reactor who entered the facility.

4 1

4I COMMISSIONER GILINSKY:

Anyone who had access tt 5

material, yes, in the same way that a worker had access to it 6-on an assembly line.

7' l

CHAIRMAN HENDRIE:

Even though the stuff is in the I

t h l

' core?

9 CCLAISSIONER GILINSKY:

Depending upon how it is i

10 ' irradiated.

It depends upon whether in the view of our staff 11 it can be taken out and used for explosiv_ purposes.

If it I

12 is relatively easy to do that, then it hasn't been highly l

13 ; irradiated.

I would put it in exactly the same category as i

la material in the fuel cycle facility.

15 !

COMMISSIONER AHEARNE:

That is saying that as_long i

16 '

as the fuel is in that kind of status, you have to have special 17 '

I precautions as to who gets access to it.

i l

13 i i

l COMMISSICNER GILINSKY:

Right.

I mean what makes l

19 l

professors any dif ferent than anybody else?

Or students, for I

'O i that matter?

21 CHAIRMAN HENDRIE:

It seems to me that when we talk 2 ; about safeguards of the rules and sc cn, we said that stuff

!that is in the core and ".as scme level of activation fails cuss;"e

..i

'the rule. There was a discussion later on that increased the y mers aex cen.

numher dhere there Was concern that the peripheral elements 10 421 311 1

I j

33 1

i gsh 2 some of -- in many of the research reactors would not maintain 2

100R at three feet radiation level., and then come under --

I 3

i bring those things bac.k on to the upgrade.

4i j

COMMISSIONER GILINSKY:

Well, we've obviously got Si j

to have some sort of criteria for self-protection and material 6

that falls or one side of it would be treated the same as 1

74 fuel cycle facilities and the cthcr side of it wouldn't.

i 8!

CEAIEUUI HENDRIE:

Well, perhaps I delude myself I

9l but I continue to see seme faint difference between irradiated 10 fuel in the ccre of a machine and the stuff along the I

?1 '!production line of a fuel material processing plant in terms t

12 of steelability and usability and convertability and general 13 hacard.to the public.

14 I

COMMISSIONER GILINSKY:

I think that we have agreed I

1 i

15 'j that abo /e some level of radiation, that is the case.

6 16 :

COMMISSIONER AHEARNE:

Do you draw that distinction, 17' Joe, before the fuel is loaded into the reactor?

18 CHAIRMAN HENDRIE:

In the safeguards, as I recall 19 i

the safeguards rule, you would implement special provisions while i

i i

' C i

~ I 3 had the stuff on site and you cranked the machine up.

And I

,1 i

! If v.ou had more than a certain Inc L:

cn the irradia:ed fuel, i

,'" !.. you sen: the fuel ':ack to the fabrica:Or, le: him keep it in i

97

the vault.

I

,1 It locked as :hCugh there Nefe CCiEE 10

'C 9 W373

=h0=O

.. ; 3,3i %eo, en. ' nc.

• C as to *;crk cut reasonable accommcdations, or at leas there were, 421 312

34 1

sh 3 until this latest rinc around about radiation level and 1

2 ;l maintaining that 100R ptr hour rate came up.

e 3

And I don't know where it all falls now.

I 4 I CCMMISSICNER GILINSKY: Jim, has spoken for the i

5, LDE.

Is there any overall staff view on this?

6' MR. GOSSICK: No, I don't think so, frankly.

I have l

i 7'!

not had the staff together to have a discussion about this.

3 MR. MURRAY:

We did talk to the staff on this 9

and anything I said is consistent with the staff's views.

I 10 l CHAIRMAN HENDRIE: I think it would be useful to ?ook I

11 '

at how a separated out fuel cycle rule might look, fuel cycle 12 facility clearance rule might look, on the one hand, as a I

13 draft.

And for the rest, I thir.k somebody ought to crank away 14 '

l on the three sorts of things that I've suggested, sort of l' starting at the narrowest one, it seems to me.

If we hang some i

16 sort of clearance or other employee approval procedure on 161(i) f 17 1 i

we do get the classic part 10 criteria whether we like it or i

i not?

Yea or nay, or maybe, I guess.

There is always a 19 i

, possibility.

i The second cuestion is --

l MR JNYDER:

Also, if ycu dor't adopt that, what

-n

~~

criceria do icu use?

CHAIRMAN HENDRIE:

The second cucation is, that

.,l keeping in mind for reac cr personn.el- : der't know that there's

-. -,c n,.cxuw,

,c.

• C mw anything about :he 'ad s a,. i n g, national securit/ clearance --

c 421 3;3

35 :

j I

gsh 4 that makes me feel so especially goed that we need that 1

i 2 U nomenclature.

An appropriate reliability program would do fine 1

i 3

and recognizing that there is some possiblity that we could create a difference between reliability programs and clearance I

i 5

programs.

i 1

I 6

there some room under the statute that would gi' e Is i

7'I us authority to put in right of rule with some requirements in O' it for some review of employee reliability on health and safety i

i 9!

l grounds and without hanging on this 161(i) access language.

10 '

And then, thirdly, the one -- how could one shape c.n II ' explanation of a program which would be, in quotes, "a reliability 12 program versus the clearance program of 161(i). "

And is there --

13 can a difference be made that would be supportable and 1

14 i on which one would feel that litigations -- in which one would 15 l feel one's litigation risks were not all that large for being 16 overturned on it.

17' i

Because it seems to me that if the answer ~o the I

t i

p"<latter two questions is, yes, you can do, you could find that a

17 l I

iauthority and you could make that distinction and gc that way.

I i

1 20 I Then I think there is a direction to go which is the one the i

71

bcarc has re ;c mmen ded.

And we could then work farther down that line.

' ~.

Mr. Bickwit. Mr. Chairmaa, I think

.t iculd be

'1

. ~,.. -,..., 1 = referable to h = the stafe 2ckie those 4-=====n2 a=c== au=

cs smalzs:s :n the reco f r2tner then

==r seexin; the s:2ee 421 314 i

36 i

1 csL 5 advice and then formulatinc cur own analvsis.

And then for us l

2 " to give you our analysis based on the staf f's analysis and i

i q

l anybody *'se, any other parties to this proceeding who might i

i, 4

i want to respend to it.

I l

i c'.

Mr. Murray.

Whatever you wish, Mr. Chairman.

l 6

Ms.

Nordlinger.

Also, I just wanted to add that 71 our paper that I sent up made no attempt to recommend to the 8' commission what it ought to do about the board's report. We 9

were just dealing wich the fact that there were certain f

10 0?ficiencies in it.

I' 11 '

I think there might be scme further question of 12 whether or not the commission is just going to adopt recommendation i

13 !

l of the board s ith regard to some of the issues, psychological 14 ' testing and whatever, that I think require scme greater l

15 1

examination.

I I

16 l CHAIRMAN EENDRIE:

I think I need to know where I I

17 ' stand with regard to these other questions.

If, for instance, la ' it comes down that, no, you can't make a difference, then that l

is worth arguing ultimately between a reliability program and i

20 a clearance program.

I

~1 There 's only one kind o f clearance crogram and the

~

only way jou can support it is 151(i), and the only way tha:

'you can do that is to use the Part 10 criteria and call it a

~~

^

"ational securit'l Clearance.

7 AN* ct 3e A e./)r'e r t IN.

,5

~

Then I think we scratch cur heads 5.d start thinking 421 315

37 I

i i

I gsh 6 ahout sort of new approaches.

If the answer is yes, that it

, :l

' r looks like we could shape an approach that would go that way, i

3 then I thinx some of the questions that you talk abcut arise t

I

! and then we would have to see whether we think the record in i

', this proceeding would support those directions or wnether we i

i 6

wo uld, in effect, be launchins a new venture upon.'hich this I

7l record could always be used as a base and referred to, but 8

which would need to be supplemented.

t 9

i COMMISSIONER GILINSKY:

It seems to me a national 10 security program flows from executive order authority;

whereas, i

11 l 161(i) is a different sort of animal.

I i

12 1 CHAIRMAN HENDRIE:

I may be using not quite the right 13 i nomenclature.

Every time I said national security clearance, i

I 14 lI have meant a clearance under 161(i).

I 15 ;

i COMMISSIONER GILINSKY:

I'think an important distinction i

16 I here is the statutory basis for this.

And there isn't for the i

j,'. other.

And I think it is not a good idea to extend nationa?.

t 18, security programs to the purely private sector to cover i

I i

17 '

i activities which really are private.

20 In other words, they are not ccaducted on a contract I

D'

~

to the government. I thi:.k one cught to recuire a statutory i

' basis for any such extension cf clearance prcgrams and 161(i) ldoes provide such a basis.

l a

.+ --w.,

a eooren.

-c l

That's why I've always preferred basing oar programs

5 I

!On that authority.

If We'rC sirply 7cing 50 say hat s cCe thi!.g l

421 316

l 3 81 i

{

is dangerous and therefore, one ought to invoke national gsh 7 i

I security classification, then it's not clear where you draw i

i

.e ne acen reactors ar.d dams and bridges ar.d oil 3:

refineries and Gcd knows what else.

4+

1 COMMISSICNER AHEARNE:

Just so the questions don't 3

l 1

ge t los t --

6 I

i CHAIRMAN HENDRIE:

Wait a minute.

Let me not go 7,

i away from that.

Let me ask a moment -- would you tell me if 8,

I go and ask the government of the United States for a 9

clearance to have access to special nuclear material under 10 l

161(i), wherein said clearance in any fashion at any step of 3) i the way is distinguishable from what I would call the National g

Security Clearance --

g COMMISSIONER GILINSKY:

It depends upon which j,

I criteria.

Each agency processes clearances and covers activities g

i within its purview.

And it depends upon the criteria of the 16 agency.

1,,

i I think other things being equal, it's desirable 18 that they be the same as COE applies in our case.

But I think jg l

J

! it seems to me that there is a great difference in not proceeding

,0 i

7;lonthebasisofstatutoryauthorityasoppcsedto invoking the

,, i. ' authority pursuant to executive order.

1 tiR. M C.r, RAY : But the criteria wculd 1cck largely

,3 j che same. Indeed, you recall stafi papers which came to the

-ecem new m. we.

inCeec, b e :. Ore Onis ru_,e-making got under~any 3Cd c o C'.=1 s s io n,.

,e l

421 317

i 39 l

1 gsh 8 which were sort of the progenitors for the rule-making itself 2'

when all of this was discussed.

i 3'

And it was pointed out that the staff attempted to l

4!

develop different criteria for access and you couldn't get 1

5!

that far away to make that much difference.

I 6'

We acknowledge that several existing criteria are 7:

anachronistic.

8!

l CO>D1ISS;OIER GILI!ISKY:

As I remember, and I may 9j be wrong, it wasn't a legal question.

It was the commissioners 10 at that time dic not want to depart from the criteria.

11!

MR. MURRAY:

There was certainiv that element.

12 COM'IISSIOIIER GILIriSKY:

I don't remember if it ever 13 came to a legal question whether we could require it.

14l MR. MURRAY: It was discussed.

15,

j CObD1ISSIC!iER GILINSKY:

I just don't remember.

)

16!

CHAIRMA:I HE!iDRIE:

You seem to be saying that -- I 17

don't know what you are saying. Do yo2 think any sort of 18-review of reactor plant e ployees is appropriate?

i 19' CC301ISSIO?IER GILI!ISKY:

I would not at this point 20' l start a clearance program to cover reactor empicyees.

21 I CHAI?l4A:i HE:IDRIE:

You just wouldn't have anything 22 in the regulatienc ab('.ut employees at these plants?

23' CC:OtISSIONER GILI::S:a -

I'm nct sure,

'c u t I'm l

l 2J "00 rO3Cy 00 ~CVe forward With 10 now 2nd Ti inclin30iCn is 00

. a. x,..r. ; : m e,cv 25 l

! sa; p ro b ab l *, no t.

I would not want :c promulgate an :iRC l

i 421 318 l

4

r I

40 clearance program to cover the utilities.

gsh 9 1,

But there is another point, which is that if one 2

3: does do it, I think that there's an important distinction i

4 whether vou use national security authority flowing from 5

executive order or whether you use statutory authority coming i

i 6l from the Atomic Energy Act.

And if it. came t,

doing it, I i

7 would prefer to use the Atomic Energy Act, as amended.

8l CEAIRMAN HENDRIE:

That means the classic Atomic I

9 !

Energy community clearances, the national agency background I

i 10' check and review against the Part 10 criteria.

11 COMMISSIONER GILINSKY:

I'm not sure cecause in the 19 past, those have been applied in other areas and we may be 13,: free to adjust the criteria for our purposes.

I jai I don't know the answer to that and that is why I 1

15 agree with Jahn.

We've got to try to get the answers.

16:

COMMISSIONER AHEARNE:

What I wanted to say is that 17, in this long list of questions that are being asked, I wanted 18 to make sure that two did not get lost.

I think I understand 19; LED's position.

I clearly don't have the same summary that 20 Ji.m spoke about, but I urderstand their conclusions.

21 And so at same point, I am going to be interested i

22.

in getting CGC's conclusion on whether or no we are recuired l

23 to folicw the criteria o f DOE, and if it helps to have some 24 alternative.

Bernie said, well, what alternativa might you

a a.wm : yc.n 23 have in mind as a werking alternative?

You would use at leact 421 319 i

41 l

\\

1 gsh 10 what the board was saying here is an alternative that might l

2' be usable.

3l.

i l

The second is that in the construction of a segmentedi l

I 4Id out piece, I would like to see not only the fuel cycle 5!

facilities, but to the extent that it is possible, handling 6'

formula quantities of SNM, which does go into the transportation 7

I area and does go into the research reactor area.

8l Mr. BICKWIT.

I might say that we can go directly 9l to the OGC analysis, if the staff wants to rest on what it has 10 l in the record as far as its own legal views on these questions i

11 !

are concerned.

12 !

MR. MURRAY: We would be happy to provide that.

We've 13 '

already got it written.

14 MR. BICKWIT:

I mean the staff has considered these 15 i

! questions to a greater extent than OGc has.

And we would want i

16 !

to go to the staff for its views. And the best way to do that i

171

! I think is on the record.

o I

18 MR. MURRAY:

But if you order us to do it, Mr.

l 4

19 '

! Chairman, I would plead with you to change that last sentence i

l 20 !

I on the first cace of the order, which says, further, the

! staf f should prov-de a legal analysis for its pcsition dr.at the NRC T.ust follow the standards for access.

23 CHAI?3!AN iiENDRIZ: We are.o: going anywhere where 24 ]iWe're 90in? t0 Order-

,.;wers am...t n,e.

Sc s-

U ERA?.

We did not take that position.

MR.

1 421 320

I

.; 2 l

l l I i

gsh 11 CHAIRMAN HENDRIE:

What I would ask is that some

,I

'l material on taene several items, as I have enumerated them, l

3l be provided. And the cou2 1 says that he thinks it wou]d be s

4 I

helpful if the staff provio M those, in effect, on the i

5 record.

Just in the event, I might say, that we do move 6'

forward within the context of this proceeding, why, that is I

7l j

an appropriate way to go.

i8i It may be that we would come to the point where we l

9i would have to chuck the whole thing.~nd say, well, you can ' t I

10 i win them all.

Forget it, 11 COMMISSIONER AHEARME:

1 don't think that we would i

12 i' have to do that.

13 CHAIRMAN HENDRIE:

Well, I think that that is 14 getting to be a good possibility.

Okay.

Thank you very much.

i 15 (Whereupon, at 2 55 p.m.,'the committee adjourned, E3 to move en to other business.)

17 l

'4',

19 42I 321

,o 21 22 i

23 N

3 ; m u accurers.inc.

15 t

l J

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