ML19259A384

Responds to 781121 Constituent Ltr Forwarded to NRC Re Proposed Rulemaking on Authority for Access to or Control Over Snm.W/Nrc Concluding Statement on Proposed Rulemaking

ML19259A384
Person / Time
Issue date:	12/21/1978
From:	Gossick L NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO)
To:	Gilman B HOUSE OF REP.
References
RULE-PRM-50-7 NUDOCS 7901020385
Download: ML19259A384 (51)

Text

{{#Wiki_filter:s-m (, I f UNITED STATES yg , 9f' t NUCLEAR REGULATORY COMMISSION j %Q! h WASHINGTON, D. C. 20355 O.d Qsl %, * *....e DEC e 373 The Honorable Benjamin A. Gilman The United States House of Representatives Washington, D.C. 20515

Dear Congressman Gilman:

I am pleased to respond to you in respect to Mr. James J. McGovern's letter of tiovember 21, 1978, concerning a proposed rulemaking on Authority for Access to or Control over Special t;uclear Material. By way of background, let me briefly summarize the events which led to the hearings, referred to by Mr. UcGovern. For many years, the CCE (and its predecessors) and the i;RC have had personnel clearance programs for persons having access to classified information and materials. The concern for protection of unclassified special nuclear material led Congress to pass Public Law 93-377, in 1974. This law gave the AEC/i RC the authority to establish an access authorization program for investigation of the character, association, and loyalty of individuals in the private sector of the nuclear industry who were carrying out activities invclving quantities of special nuclear material important to the ccmmon defense and security. Because of the controversi_al nature of public issues involved in this rulemaking, such as civil liberties and personal privacy, long and careful consideration was given this matter; first by the Commissicn Staff in devaloping a proposal for an access authorization program, and later by the Commission, itself, in deciding to publish the proposed amendments for pubiic ccmment. As a result of its centinuing concern over the complex and competing issues involved in the access authorization program, highlighted in many cases by public commenters, the Commission decided that conducting a public hearing would be an appropriate way to assist in making an informed decision on the matter. The hearing gave ample opportunity for interested perscns to present facts or opinions to the Hearing Board, and in fact crew the interest and comments of industry, civil liberties groups, other govern-ment agencies, private citizens, and Senators Inouye, Mcrgan and Tower. Mr. Hanlen's letter and comments, enclosed with Mr. McGovern's letter, were served on all parties to the hearing and will be considered along with the views of all other participants. As to Pr. McGovern's concern that the two sides are no closer to acceptance of the opposing view, it should be 20f6 209

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The Honorable Benjamin A. Gilman Laderstood that the purpose of the hearing process was to consider divergent views and allow maximum public participation. In this regard, the Comission Staff, whose views were expressed in their concluding statement, served as a participant in the hearing, responsible for defending the staff position. The staff view will be considered, along with all others, both by the Hearing Board, in making its recon-mendations and, subsequently, by the Commission in making its decision on the rulemaking action. Full consideration will be given to all of the views expressed in the proceeding. I should point out that the hearing process is not yet ccmplete and that, consequently, a final decision has not been made by the Comission. The Board is still deliberating over the hearing testimory and is expected to complete its report and forward its recommendations to the Commission by Cecember 31, 1978. I hope this information will be of assistance in responding to Mr. McGovern. If I can be of further service in this matter, please let me know. Sincerely, 2_ ^M f" 20f6 210 a .:s l

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McGOVERN, J. J. NCULI.AR REGULATORY COMMI CASE aj: i, l November 30, 1978 Mr. J. J. McGovern l Lakes Road, R.D. f4, Box 220 Honroe, New York 10950 I

Dear Mr. McGovern:

Thank you for your recent correspondence regarding recent rulings of the Nuclear Regulatory Commission. l 1 Please be advised that I am looking into this natter on your behalf, and will keep ypu posted on any developments'as they arise. With best wishes, l Sincerely, i BENJAMIN A. GIIJ!AN Member of Congress { BAG:Z 20(6 212 i i '0

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J. J. McGove rn Lakes Rd., RD4, Box 220

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Y. 10950 November 21, 1978 Mr.'J. Gilman House of Representatives 16 Orhard Street Middletown, New York 10940

Dear Mr. Gilman:

The current attention being given to limiting government regulation of private industry prompts me to bring to you attention the controversy over a proposed rule making by the NRC. I believe the two documents enclosed present the divergent views on the subject very well, and after much time and expense in hearings on this subject, it is ap-parent that the two sides are no closer to acceptance of the opposing tiew point than they were initially. I must agree with the anti-regulatory side in this matter. If this rule making goes against industry, it will add one more barrier to this country's goal of energy independence. Very truly yours, Ld' l6'--h4< < / ' James J. McGovern JJMcG:js Enclosure 20f6 213 ald"o mo o AS-

P. O. Box #6CTT Dickinson, Texas 77539 Septc=ber 25, 1978 TO: Participants in the Hearing, Docket No. RM 50-7

SUBJECT:

In the =atter of amendment of 10 CFR Parts 11, 50,.and 70 CONCLUDING STATEMENT OF THE NRC STAFF A review of subject docu=ent is attached. I feel that the Staff Concluding Stata=ent is, at best, a capricious treatment of the testimony patiently presented, at considerable expense, by the participants. I am deeply disappointed by this sanifest failure of these processes which were conceived to provide a forum and mode of redress for cit-izens injured by govern =ent. I sincerely hope that the opponent participants in this hearing vill accept the inherent rish in strong opposition to authority, to express to the NRC and to appropriate Congressional representation a rejection of the attitude and action of the Nuclea- " Matory C - ssion. / / / w.6 Don F. Hanlen

Enclosure:

Review (6 p.) 20(6 214

It =cv see=s clear that the purpose of the hearing was not to review the char cter a:d visdc= of proposed rule =a':ings, but rather to institutica-e alice the basic Nuclear Hegulater7 Cc dssic: positice. There were no tec" ' cal ccacessices of significance derived frc= the hearing. The abando==ent of the ludicrcus and unte:able pcsitics regarding air'4 e pilots, and the secc d thcughts with respect to the value of psycholcs-ical testing vere in the directics of greater arregatiens. "'he " grand-fathering" concessica, the incredible delays fer i=ple=entatics of the prepcsed f* e', and the ec=clusicts regar d g se -pcver reactors were a tolitical ec cessic s. Withcut these ecccessicas it is robable that .e 1 Y industry cen'd and venid have std ' lated a =ajcr Cc gressic al review of Hegulater7's clear pree:ptics of legislative preregatives. It veuld be appropriate and i=teresting to suh=it the Staff's Cc cludi=g Stat e st to an acade=ic review fer the *.purpcse of ebaracte-izing the intrinsic legic (cr lack thereof) cf the presentation. The ratic ale and the cctr'"-icts of the staff are specicus -- are si= ply =ct coupled icgically to the =ajor pre =ises, =cr to the general testi=c=7, =c even to the testi=cc7 cf sc=e cf the staff witnesses. The cppositic testi c 7 cf all vit: esses cther than the staff not.rith-ste d* c, the Nuclear Reg"tcr/ Cc d ssic: vd ap.rently =cve ahead in its assu=ptics of ccustrictive and. absolute pcVer ever the (suclear) eneriJ iniustr/. It does not appear that industr/, the Depart =ent cf Inergy, nor the Icecutive depa:.-t=ent can find the =eans er the vill to -ce heard for the pecple. ~Withcut ec---:t c intent, I sub=it that the 3EC, thrcugh ec=tinuing efforts e"*racterized by this hearing, is adver-sely and "- ecessarily thrcttling the nuclear '-dustry, and thereb7 a=7 hope for United States energy independence is cur td-a. The abandc =ent of the ec: cept cf using psychelegical testing has at least c=e unfertunate i= pact -- fcr ve lese a tecl for examizatics of the He5"1'ters. It veuld be of signal interest to identify the censis-tent characteristics of career reg"tcrs. In the spectre.m of these police-related activities, the nature of persc ality/=otivatic- ' re-latic ships and cc=:enalities to other, less sephisticated police forces =ight prove to be verch ec siderable study. The felleving c_e:ts relata to the respective parag aphs of the Staff's Ccecluding State =ent, as indicated. Nc all paragraphs are included. Sectic 1.2: The ccacept of the " insider" is as tirera-4 ed =ajor pre =ise. Of course, cace granted, the " insider" concept is clearly an i=portant ecesiderstics. Eevever:

a. "?e =cre kcevledgeable the insider, the lever is the probabdt7 cf his existence (See Sectic=s.2.2.2 and 3.1).

It follevs that the person who becc=es authcritative encugh (k=cvledge *-d positics) to acec=pl.ish sig d'icant sabotage, vc 't.

b. partic"rl vith regard te pcver plants, the "cpper-

/ tu _ity" (page 2, line 5) is enig=stic. Te de what? Several successive events veul:1 be necessar/ to de any.hing ' ' 'e' 'o the health and safety of the public. The probability of successfc.1 pursuit cf the several steps vi:heut inter:iictics by c her, v ite-hat insiders is sc:eplace between :e=cte and segligible. . Sy j'i -..a .. m.. t... - o tj u d

_ _ _ _.... ~.., m i.u release postulated (Sectics 2.6) for a pcVer reactor is not at all clear. Given the "cypertunity", what is it he dces? The i= plicatic: see=s to be insti atics of a LOCA.

d. Modest " physical protectic: dev'ces" (page 27, line 21)

-/ 91 surely work even better in a pcVer reacter security structure than they v in a research reacter securit/ strue:ure.

e. The citatic s by EC c page 2, line IL, ff, are a un-acceptable plcy to i= ply that =ajer industrial eierests ec cur vid the EC pcsitics.

Tadust:/ has always screened its potential e=ployees, and the cited testi=cc7 in fact a-d in u=rc :a andiced ccatext clearly ccatradicts the Staff p'esitics. While it is abundantly evident that the EC Staff "continu es to believe that a gover--act u ~d-4stered access authericatics pregram is necessary," tee Staff prcduced to evidence of any substance to support its positic=, and no argu.=est of ecusequence to negate the actual and present pcsi-tics a:d practice cf industry as carefally explairdby the corporatic s so devicusly cited. The EC Staff abuse of this =sterial cut of centext is to be deplored. Sectien 1 3: The EC positics, as derived frc= the Aa.c=ic I ergy Act of 195h and ratic-C ' ed hereis, is highly suspect and. highly ~ specicus.

a. EC cc=tinues to unde. ' e the cceduct of suelear re_

search in the U=ited States, despite the explicit ad-nitica '"a Act. The 'softe ' g of the EC positics in paragraph 2.6 ef the Staff statement 1: no way =eets the spirit er la.cter cf the ACT. Reg"tery harrass=ent charactericed by the forced ('i= sel" defense) participatic: in these hearing by "**versity, resear d and. trai.ing reac:cr fac':ies (which afford) viciates the explicit ad:ctitic: cf the Act; the they c' 4" excepted research reacters (page 28, e 8) which vill st'" be forced to =eet the cceditices of the prepcsed rule are SEE najor nuclear research reacters in this country. Already reduced to teria:/ impotence by regu-latics, *' hcpe for keepi g even a lagging pa-

1. ~ -" clear research relative to-France, erm. Etssia and -' 7, racy ccher satices vill be icst. Our dependence upc foreign cil v

sect be rr.tched by a te.al dependence upc foreign : clear researd. d

b. The ratic-a d atics by W.ia" ' '- a staff incerporated pcver reacters in the sabetage/diversic: u=bre is <**'ficult to fc11cv, g hence to critique.

Terk-dca"y, hcvever, the definitien of Special _M Nuclear Material she"1d clearly except pcVer reacters, because the S:24 grg is just not available -- =ct to an insider =cr as cutsider. It is sc unavaa%'- '-*act,thatwedc='tevenvasttonesswithextractifit! (BEM 6 3

c. That act of sabetage of a pcver ;' *-t which is so dev-astating is not at *" evident, as I suggested earlier.

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d. Inte ru.ctica cf the su :17 cf electrici-/ to federal DJ us e rs is a re= ark ble - ~" ' -'- 3 --

C: that basis, ce secu-ity p 4 cla ' ----a game reaches astre ' cal prcpertices, r e ma:/- vays c:e can interrupt pcVer tra e ssien -a ' ' ~ s: unecurtable, but '- '-das te d c---"-ities cf farmers, ranchers, bunters, %'>=rs, archeclegists, etc. Just incidentally,'the las va7 c e =ight go abcut the assign =ent of inter:epting pcVer (to the feds or ar/bcd7 else) vculd be an attack en a Central Statics Nuclear Stes: Gene ater er its hard.-tc. reach stent fuel stcrage. .%st a:7 da=, fessil plast er hipeline v- '-- 4 d -.

e. The state =ent by Mr. Rccers dcesn't =ahe the ccatent fact "'.

Mr. Ecgers' cpinics is respected and of conti:M g interest, and is also quite acceptable in virt. Ecvever, the prcble=s of fuel d precess - p'*-ts shculd act be ccupied to the _reble=s of nuclear pcver plants carelesc'y. They are two distinct and different =atters.

f. It seems apprcpriate dat Ceng ess, net : 5.C pr: tide a prcper frateverh for deze devicus sec= ity inc= siens in:o cur way of life. Using Mr. Regers' state =ent to ec=pletel/ revise de defi:1. tien of SUM lies sc=ewhere between ri:iitulcus and suspicious.

Sectics 2.1.1: "The prchability of an act of radiolegical sabotage by an insider is present4 censidered unquantifiable." "The fact that no radiological sabotage has :ccurred does not =ean that it vd'7 =ct occur." "It is necessary to presu=e that such an act eculd cecur." SIC SIEIR U?X7f Sectics 2.1.2: In the *uel cycle secter, the p cble= is identified and is being b -d'ad. "'he Staff pcsitics s bate ent is ccrrect, but who needed. it? Section 2.1 3: In the area of transportatics, teday and always the issues of safety pree=pt a cher issues. T=at 'see=s strange is the streng-h of the Staff positic and the rec ~---:: led courses cf actics for nuclear pcVer plants, where accc._clisk-ant is si=ple; whereas in the stter cf transpentic: the preble=s are ec= plex, real and unresolved b/ the weak Staff actics. Fcat we vd be doing, apparently, is - "d-d cing the regulatory red tape, thus assuring the videst possible brcadcast of intent to =cve =aterial; fcileved by clearly markd g fer de benefit cf a pctential tercrist the ship:ent and vehicle, including charactericatics of the centants as a =atter cf interest for the te=crist's assessment of whether he shculd divert, or si= ply spread de =aterial arce-d Sectic: 2.2: Lcng and tedicus ntic x'i atices lead the Staff to the cenclusic: Sat alternative prc5 a=s to the ene they postulate just vc 't do. Perhaps the federally ecutrelled security investigatic: is best, but reces; events as well as histery point up the indisputable fact that security leaka e by fed-erally cleared persons is not unusual. There does act se= to be a:g sub-stantive evidencethat the s. ple NAC vo"'d =ct be as effective as the d present syste= of federally cc:trcIled investirations. By de cited testi cty (parag sph 2.2.2), pact behavier is the bes- '-d'" cr. ~ ic _cg tells us that if a subject is act elever encugh to escape de:ectic, ce agency rece-d_s v rei".ect his e:- cr, hence pc:c ial unaccepta-bilitf. I' subject is clever and escaps detectic=, che fie'.d inves-tigatic: vd prebably 20: be effective, fer his errer is -- ' -" ar cf rece-d. D fP ?0/6 21/ l-{@n]D. '@D W]V ~ 0 IU, d y

A: 7AC vculd pres"~ bly include satic:al agencies. Sur, the -a--/ social security filas veuld be pulsed for < ' ass infer =atics. Only if certain key issues surfaced vculd investigation beyctd the agency check be rec-essaz7 It see=s, therefore, that the Staff positten is unnecessarily arbitrar7 and capricicus, and its ra ic ale cece =cre specicus. Sectics 2 3: Fere, as in several e-ler areas, EC seems v'"' g to ec=prc=ise tight sec c ity si= ply because tight security is not really possible, or is difficult to achieve. But, when is the ' dWSccd greater for successful, dest =ctive inc= sics cf cutsiders coupled with Se insidicus d-eider if act during the cutage activities? These ec=prc=ises for ad-Nstrative/ political reasons make the entire Mtc proposal suspect. If the threat exists, it =st be handled. It is pointless to schedule loose seerity periods (as this ratic ale of this section generically dces) for the benefit cf the (e^'-arical) terrcrist. Sectics 2.k: Frc= this sec'ics c e can vc d s just what actual criteria vd " apply. It appears pr bable that s' d' =rly devicus behavioral actic=s, brcught to light by investigative precesses, cer'd be adjudicated di"ferent. ally,e.g., frc a perspective cf cultral er envircemental bach-grcunds. 'ictvithst'"aing such subjective issues, the statistics c: unfavorable ac-tien c security clearances begs the questics, sh7 bothe-' " sterically, iever than ene tenth of ene percent of the clearance applica: ices were denied. A=' interesting statistic ver'd be; cf these cleared, hev =any violated the cc ditic s of their clearance? I suggest t * -- -"-"er of cases of viciatics cf secc ity cc:ditices by a'-a-d indivd duals is nar.7 times the nu=ber of denied cl-= ~ --as. Glaring exa:ples of vicla-tics of security at de highest levels have been revsvorthy ever the past few years. There =ust be thcusands of cases of proven, intentic:al viclatics of security respcnsib4 ties. Sectics'2.5- - erestingly, de discussic herein identified "addi-tic al ec=partmentalicatice," as c e cf de protective =easures against the insider. 3asicall, cc=partmen-A.- / 1:atics is the culy real pretsc: ice, that is, ma'. g the d successics of events leading to effective terrcrist actics withcut inter-diction an unreasc able sequence, or negligible success prebab"'ty.

actica'17 speaking, sufficient ec= par =entalization already exists for

= cst nuclear pcwer plants. Cc ceivably, sc=e plants ceuld benefit by =cdest ad-#w4 *trative changes to their already existing cc=partmenta3.- ication. Sectics 2.6: Of the varicus proble=s engaged by EC relating tc this hear. g, the inne cf men-pever reacters is least effec-d tive17 ergsged. 7:e:her the questic is 20f6 218 Diversic D D D '9~ T h 1 Radiclegical saber age es o es L .:.nsic.er

it is far s#

1 7 er, =cre pr bable and =cre effective to ter crice frc a research reacter scenario thn frc= a pcVer reacter. 21s sectic l' 'ts the prc=pt cause possibilities to a "relatively large quantity of ex-plesives," and si= ply brushes the prcble: away.

A basic objectica to this sectica is the implicatien for ;ceer reactors, at:1 is particular the = cans of release to the envi en=ent of significant egnta=isatien. If =ct explosives,,vhat? The 1. plica:ics see=s to be stcred ener;.f, as if stored energy were easily ta;;:d to inundate the civil pcpulatics. Certainly, if it is standard. prac-ice to allee dubicus characters free r.: of ;cuer train centain:est when the primary syste= is hot (ther=cdy---ically and radiclegically), then stored, ;ctential energy

heuld be a censideration.

But such a practice is V c: g, at:1 I decht that pcVer utd'dties allev " untested" perse--*' '-*o any of their pcver trais s ste=s, nuclear er othereise except under centrolled conditions. f Further, if there are abuses of this type, they are easily corrected, and do not involve the elaborate security prcgras extant and/cr preposed. Exclusics of research reacters*frc= thi rule = &d g is a goed idea, even thcugh they are more vulnerable to and practicable for terrorism. Power reactors should e.lso be ~1"ded, leaving only fuel reprocessing, in-cluding the transportatica involved. Even when diversien is the issue, research reacters do =ct represent, and vere =ct sh cvn in the hearing to be a significant proble=. To suppose that the cores of several reacters vd be "ccliected" byfa ter-crist g cup whose acticus then vd be undetectable and unrea civab'a d" 'ke =c ths necessarf to go frc= SICI reactor fuel to SIC 4 bc b :sterial, is utter =ctserse! The six reactors which #1' be required to cenfer= to the cenditic=s of the preposed rule present an interesting centresc: At least two vd'1 'ce shut devn, even thcush they =ay also face incredible difficulties in disposi=g of their present fer=ula qur--itie: cf SICf. The quality of the neutre spectru= of a cther two v4'1 be sharply affected, as v4 the pctential for future upgrading of the systa=s to staf #.th O D *D'ff3"!" mq th" ***** # th' *#' ^8 d*Ii *d DY th* 1**d*r8 i^ ~ g " k , nuclear rese ~ " d-W' ce, Ge=any, Japan, Russia cc and elsewhere. 3f e. :1 large, upcn i=ple=entatien cf the necessary changes based en the prepcsed regulates, there -# be sirnificant reductices i: trad-d g reacter availability, sharp reductices in the quality of U.S. nuclear research, and eld-i-ation of the United States as a sericus cc tributor to f' -A~ ental non-vespens nuclear R & D. ?erhaps cne of the =cre a=using cutgrevths of the crushing bur:iens being i=pesed by Regulatory as a result of anti-nuclear pres:ure., cups v41' be the continued dec'd e in =cn-vea;cns (true) research.

• here vd' he no affect upc: veapcus R & D.

The United States vill.becc=e even scre academically isolate:1 frc= the bacic scientific verld -- perhap: estra-ci:ed is the word. 2F6 219 Secticn 3.1: I the fd -* '- analysis, it is difficu'.: to under::and vhat persen, whc really q"e'dfies as an " insider" for effectivitf, ven't meet the condi icns cf this rectic. Rased en other (stati:tical) data discus:ed earlier, the prebability of the insider being eli=i.ated by the s=uritf inves-tigatics is r-~,te. Accordingly, a 'Sa ext a-facility =easures ene can take leave the nuclear facd'*tf.c lees e.:1.erable than bercre. ._, ~-, _ ..,,4-, 4,,-, -_,- a e..,

s Of ecurse, that's the way cur present s/ste=s (in industrf) verk scv. Sectic 3 2: Ibid Sectic 3 3: Ar. participant in these hearings fer the research reacter ec--d ty, it beheeves me te breathe a sigh c ' *a ' # " and tiptce quiecly t.vay. As a thcughtfd persen, I casset do thac. I agree ce=pletely with the cecclusics of this sectics, which divorce = cst resea.=h reacters frem the preposed rule, but disagree tota'y with the incredible ratic"14"tiens that placed research reacters in an exe=pt status v5*'a =aki.=g safe, va" -attended pcwer reactors the butt of this regulatorf practical, joke. Sectics 3.!': For those ec:dtic:s wherein significant adverse radio-1cgical er diversiccary results are a censequence of tercriss, the CNL'? ;reper resciutics is tarf. F#'#tarf air shipments are the clearest exa=ple of a sa:e nuclear ;clicy M the te =crist threat exists. S' rly, where fael r precessing is threatened by tencrist activity, caly the -dtary shc"'d be e ged (and t=ste:1) with the welfare cf the _:tblic. IF tercrism is real, let cur defa:se be federal forces, =ct private mercenaries. Sectie 3 5: Fi=a'y, based cc the published 1:3 =-antatica schedule 1 for this prc;csed rule, e. terrorist vd be quite clear c what =ust be dcce and by when. =asa-.,,ng25 L". there is a proble=, please ccrrect it cv. Ce the other hand, if tercris= is cc the sa e schad"' a as Reg tcry, it appears that you k=cv encegh to interdict it far shcrt of evert facility involve =ent. Sc, let's get the tarf tc stc; te rcriscs. ~_ce: we vc 't need all these extra investigators and guards and ' -Es to process all cf these nev eeple and the paper they require gene. ate besides. r I Sectics h; In eccelusic, NRC clearly failed to =ake its case. The prepcsed rule shculd be abandered. 20f6 220 0 * *'D *D'3~l ! .S-o e

I I E F: L: E t CONCLUDING STATEMENT OF THE NRC STAFF AUTHORITY FOR ACCESS TO OR CONTROL OVER SPECIAL NUCLEAR MATERIAL (RM 50-7) 20/6 221 O fi M W i L_ Lbj j

i TABLE OF CONTENTS Concluding Statement of the NRC Staff Authority for Access *w or Control Over E L. Special Nuclear Material r. c Page g i

1.0 BACKGROUND

1 L 1.1 Introduction...................................... 1 1.2 The Purcose of the Rule (The Need for Protection Agai ns t the Insi der)............................ 1 1.3 Legislative Authority for the Material Accass Program......................................... 2 1.4 Hi story of thi s Rul emaki ng........................ 4 1.5 Impact of the Rule..~.............................. 5 1.6 Privacy Act Consideraticns.......'................. 6 2.0

SUMMARY

O F TH E I S SU ES.................................. 6 2.1 The Need for the Proposed Clearance Rule in Each of the Licensed Activities Covered by the P ro p o s ed R u l e................................... 6 2.1.1 Nucl ear Power Reac wrs..................... 6 -7 2.1.2 Fuel Cvel e Facil i ti es...................... 7 t.' 2.1.3 Tra ns po rta ti o n............................ 8 [ _s 2.1.4 The Need for the Government Administered g E-b hrohram.....................****a 20/6 222 s . g e qg gyy l e .-Me AX o

TABLEOFCO?tTEllTS(cont'd) Pace y-- 2.2 The Identification and Advantages / Disadvantages 1 E-of Al ternati ve Programs......................... 9 e 2.2.1 Staff Proposal - Backgrcund Investigations } h Conducted by Civil Service Ccmission... 9 2.2.2 Psychological 5ssessment Plus Background Inv es ti ga ti o n............................ 10 2.2.3 Response to Questions of TVA and Ms. Levine............................... 11 2.2.4 Industry Conducted Program................. 12 2.2.5' ilon-Investigative Safeguards Measures...... 18 ~ 2.3 The Impact of the Proposed Rule on Manpower Requirements and Costs During Planned Cutages at Pcwer Reactors.................................. 19 2.4 The Suitability and Relevance of 10 CFR Part 10 Derogatory Information Categories for Material Acces s Authori za ti on............................ 21 2.5 The Extent to Whcih a Clearance Program Should be -m Credited Toward Meeting the Performance i:n Requirements of 10 CFR 73.55 and Proposed j 10 CFR 73.20.................................... 24 i.W 2.5.1 The Provisions of 10 CFR 73.55 >i (Reactors)............................... as 11 20/6.223

Ti?tE OF CONTENTS (cont'd) Pace C 2.5.2 The Provisions of Proposed 10 CFR 73.20.... 26 El D; 2.6 The Desiratility of Applying the Rule to University [i y Research, and Training Reactors Subject to i^ u,. 10 CFR Part 73.................................. 26 wu g-L., 2.7 Impact of the Proposed Clearance Program on Trans-portation of Special Nucl ear Material........... 27 3.0 REVISIONS TO THE PROPOSED RULE......................... 28 3.1 Power Reactor Employee Grandfathering............. 28 3.2 Interim Access at Nuclear Power Plants............ 29 3.3 Non-Power Reactors................................ 30 3.4 Trans po rta ti o n.................................... 30 3.5 Implementation Schedule........................... 30

4.0 CONCLUSION

31 ?Of6 224 I*9 5 'Y 4 5 etm L5: 1E iii O

CONCLUDING STATEMENT OF THE NRC STAFF AUTHORITY FOR ACCESS TO OR CONTROL OVER SPECIAL NUCLEAR MATERIAL C s b F

1.0 BACKGROUND

r-S 1.1 Introduct'on s n This concluding statement will summarize the Staff position on the C issues identified by the Ccemission in its December 28, 1977 Notice (42 FR 64703). Additionally, this statement will address issues highlighted in oral testimony by other parties. Finally, this stateme.at will out'.ine revisions to the proposed rule published March 17, 1977, by the Ccmmission (42 FR 14880), and include discussions of g' andfathering and interim access r at existing nuclear power reactors, exclusion of most nen-power reactors ~ frcm the requirements of the rule, alternative implementation schedules, the extent to which the access program may be credited towards the require-ments of 10 CFR 73.55, and a cost estimate. 1.2 The Purcose of the Rule (The Need For Protection Acainst the Insider) The purpose of the material access authcrization program is to provide an increased measure of protection against those individuals engaged in the affected nuclear activities who could steal or divert special nuclear material, or ccmmit radiological sabotage. Such an individual, described

Egl as the " insider", is an individual who is authorized access to vital plant E-T R

?0/6 225

are' as, who is part of or has control over the system being protected or wh3 is part of the protection system. Brian Jenkins, a recognised authority on terrorism, states, "In the nuclear industry a positive but delayed identi-b fication of an " insider" may have unacceptable conse<;uences. He is GC extremely dangerous because he has accortunity which the nuclear non-state ~ adversary will probably not have and which is a key element for a succes-g sful adversarial action along with motivation and. capability."* hl L_ Physical protection measures are effective against external individuals who might attempt to gain access to a nuclear facility through force or deception. Such measures in conjunctiori with an assurance of trustworthiness through personnel screening are considered effective against the insider. Staff continues to believe that a government administered access authoriza-tion program is necessary. Other participants also wpport the view that screening of individuals ic necessary and desirable (GE written testimony, Westinghouse testimony, Tr. 144 & 145, Wisconsin Electric testimeny, Tr. 171-181, and Pennsylvania Power and Light testimony, Tr. 182). 1.3 Lecislative Authority for the Material Access Procram Section 161(i) of the Atomic Energy Act of 1954, as amended (PL 93-377), provices the authority for the institution by the NRC of an access authoriza-tion program for certain individuals employed at reactors and fuel cycle r activities. [ w I w Office of Technology Assessment, Washington, D.C., Nuclear Proliferation W j= and Safecuards Vol. 2 Accendix. Part 1, June, 1977, p. III-86. L__ ~ 2 ?0/6 226

Under that section, the Commission may designate activities which may only be conducted by persons whcm the Commission has authorized to conduct such activities. Activities which may be so designated are those involving quantities of special nuclear material important to the ccmmon defense and h: D security, the use, disposition, loss, or diversion of which could be Sg inimical to the comon defense and security. g" The access authorization program is applicable only to those activi-Da! t. ties involving important quantities of special nuclear material. An important quantity of special nuclear material is a quantity useful for strategic purposes such as for the national defense. A quantity is also important if the quantity could be used in a manner which could result in a harmful dispersal of radioactive material.. Sabotaging a reactor could result in the release of vast quantities of radioactivity, as could the detonation of a clandestine nuclear device using special nuclear material acquired through unlawful diversion or theft. A successful act of sabotage, resulting in extensive loss of life and property, evacuation of large areas surrounding a facility, mobilization of national and local defense units, etc., could be inimical to the common defense and security. Moreover, a successful act of sabotage could interrup: :ne supply of electricity to military bases, government facilities, and other vital services, all of e which could bear on the comon defense and security. Thus, the Commission could determine that the amounts of uranium and plutonium at most reactors Wm are a quantity of special nuclear material wnich is important to the common defense and security. 3 L._ ?O/6 227 3

Although section 161(i) does not expressly reference reactors and sabotage, the legislative history for section 161(i) of the Atcmic Energy Act supports its application to reactor sabotage. The testimony of Lester Rogers, the then Director of Regulatory Standards for the Atcmic Energy Comission, stated: 3i p "This (the fact that plutonium, highly enriched uranium, and M uranium 233 could be used in mTking nuclear weapons) means that conccmitant with the growth of commerical nuclear energy there will b be an increase in the amount of materials which could be used in a manner inimical to the con =en defense and security...by sa:ocace to a nuclear fuel plant or a power reactor in an effort to cause wide-spread contamination. Thus, it is of the utmost importance that there be a high degree of confidence in the trustworthiness of persons having access to or control over significant quantities of special nuclear material." (Emphasis added). Hearings on the AEC Cmnibus Legislation - 1974 (H.R.15416), g3rd Cong. 2d Sess. 65 (1974). It is clear frem Mr. Roger's testimony, that sabotage of a reactor was intended to be a use or disposition of special nuclear material within the meaning of section 161(i) of the Atcmic Energy Act. Therefore, a material access authorization program under the Atcmic Energy Act is authori:ed to minimi[e the potential for reactor sabotage since such an act would be a use or disposition of special nuclear material that could be inimical to the commoo defense and security. 1.4 History of this Rulemakina Since the enactment of Public Law 93-377, the Staff has attempted to develop an access authorization program which would best meet the intent .[ t of the legislation, would take best advantage of prior covernment i p experience and programs, and would also consider the unique characteristics y and needs of the commercial nuclear industry. The Staff Paper, L 70/6 228

Secy 76-5C8 (attached to Staff testimony), identified and analyzed a number of alternatives and formed the basis, in part, of the proposed rule. Public Ccements were received on the proposed rule. In view of the ccm-plexity and precedent setting nature of the rule, a public hearing was y w initiated to allow individuals further opportunity to comment on the issues. b. 1.5 Imoact of the Rule a The original Staff estimates of the number of individuals who would require access authorizations were based, in part, on analysis prepared for NRC by Argonne National Laboratory. This study systematically identified job functions as they would relate to opportunity to aid or comit theft, diversion, or radiological sabotage and was the basis for the estimates of the ratios of "U" to "R" clearances, 4/5 U to 1/5 R in pcwer reactors and 3/4 U to 1/4 R in fuel cycle facilities, upon which cost estimates were . developed, (See pp. 6-8 of Enclosure C to Secy 76-508). Since that estimate was made the projected number of fuel cycle facilities has decreased and the existing numb,ers of personnel at such facilitit:s who have transferable clearances due to DOE requirements has incre sed'to about 90%. Grandfathering (See 3.1) at nuclear pcwer plants may further reduce the number of "

• cuthoriza-ions needed by 30 40%.

Therefore, even considering reactor industry estimates of numbers of Q9 individuals requiring authorization, which are higher, the original Staff

g

$n,4 cost estimate is still reasonable. Tne Staff estimate of 58.5 million F5 T.h W. u* 5 70/6 229 L

Power provided an estimate as that of 25-50 million dollars, or 5 million initial cost and 1 million annual expense to themselves (See Duke Power written testimony, p. 9). On the other hand Wisconsin Electric stated the initial cost estimate to themselves to be on the crder of $175,000 (written ?~ testimony of Wisconsin Electric, p.10).

• EC 1.6 Privacy Act Considerations w

Q Prior to the effective date of the rule, the procecures required by the g$ Privacy Act will be followed. This includes the appropriate notifications to Congress and the Office of Management and Budget for the establishment of a new system of records, if one is necessary, and the required publications in the FEDERAL REGISTER. The Staff has initiated discussions with the Civil Service Commission to assure that the routine uses cf investigatory records for the access program are as limited as practicable.

2. 0 SUPP.ARY OF THE ISSUES 2.1 The Need for the Procosed Clearance Rule In Each of the Licensed Activities Covered by the Procosed Rule 2.1.1 Nuclear Power Reactors The threat from a potential adversarial " insider" is the major concern behind this rulemaking. An individual is viewed as a crucial part of the system which =aes up a safe and reliable operating facility.

Therefore, it is as necessary to assess and attempt to e'ffectively assure a measure of trustow.thiness frem the human part of the system as is done for the non-human ccmponents of the system in assuring operational reliability. 3 ! Y-The probability of an act of radiological sabotage by an insider is

• 4 presently considered unquantifiable.

The consequences of such sabotage are e estimated (and maximum's determined) in the Reaccor Safety Study, WASH-14CO. The Staff tastified (Tr. 519) that the censequences of the worst case successful sabotage cculd probably be no more than that established for the worst accident postulated in WASH-liCO. The risk of sabotage actually 6 D"D D 'T Y j . )l 1 a oo o

occurring depends upcn many unpredictable factors. Statements have been made that the safe operating record and lack of a prior act of sabotage should serve as a data base to state that'the risk and threat are not such r-as to justify this proposal. (Wisconsin Electric, Tr.173, written testi-p many of Duke Power, p. 9). The fact that no radiological sabotage has p

i -

occurred does not mean that it will not occur. It is necessary to presume y _i v that such an act could occur. Thus, the access authorization program is

=.

L., necessary to assist the Commission in meeting its statutory responsibilities to provide adequate assurance that such an act, with its serious consequences, does not occur. 2.1.2 Fuel Cvele Facilities The major difference in need for the program in fuel cycle facili-ties involves the potential for theft or diversion of special nuclear material. Such theft or diversion could result in providing the material necessary . for construction of a clandestine nuclear device. At present, the majority of individuals working within the fuel cycle sector are subject to a clearance process thrcugh DOE requirements. The access authori:ations required by this program will affect relatively few individuals, buc will ensure that all those in critical positions frca the standpoint of access to or control over special nuclear ~ material will have been investigated. 2.1.3 Transcortation T d#e x. {w;j. Theft,. diversion, or radiological sabotage are all risks when special nuclear material is in transit. Additiendly, the risk may be ,?5 55 c2 L.- 9 0;, 6 d9i 7 c

greater due *w the innerent difficulties in providing protection to mater-ial in shipment. Staff's previous testimony (Tr. 435-457) concerning certification of pilot's trustworthiness by FAA was found to be incorrect. r'= FAA certification procedures are related solely to job performance. The @E Staff has subsequently revised its position concerning air transportation. (See 2.7) E h u. 2.1.4 The Need for the Government Administered procram The Staff views the need for the government administered program, as opposed to present industry administered substitutes, as based on the following: 1. The program should provide equitable and consistent investigative standards. 2. The program should provide a uniform adjudication and appeal process in the event of adverse decisions. 3. Civil Service Comission investigations are superior to private investigations (Federal investigators can obtain more complete .information). 4. A government program provides assurances for control of information in accordance with the Privacy Act. r-5. A government program benefits frem the experience and precedence g established by analogous existing Federal personnel security j m programs. jj mw 20/6 252 P

2.2 The Identification and Advantaces/ Disadvantages of Alternative Procrams 2.2.1 Staff Procosal - Backareund Investications conducted bv civil Service Ccmmission F As stated by Mr. Williams of the Civil Service Corcaitsien (Tr. 470-480), the full field background investigation is a comprehensive and y 4 systematic procedure conducted by specialists according to detailed and . s !1 carefully drawn guidelines. The Staff has provided detailed information L supporting the view that this traditional procedure is the most compre-hensive and effective investigation available, in keeping with minimizing invasion of privacy. In ecmparison, those who have supported private back-ground investigations have not demonstrated that such i_nvestigations are comparable to a government full field background investigation. In fact, the attached table (see Section 2.2.4) outlining present industry screening procedures shcws that industry investigations are not comparable and not as comprehensive. The inherent diff.iculties in cbtaining certain kinds of important information have been admitted to by industry represen.tatives, such as Nortneast Utilities (see Northeast Utilities written testimony,

p. 2-3).

The important considerations concerning cbjective, standardized, due process procedures also contribute' to the Staff's continued strcng support for a program based on governmer administered full field back-T ground investigations. !4 F? Ei Yr ?0f6 233 S S E L

2.2.2 Psycholacical Assessment Plus Backarcund Investication In initially listing the various methods of assessing character and trustwerthiness, a number of techniques were reviewed, including background I investigations,11e detection, psychalcgical assessment, and continuous i li observation. The goal of all these techniques is to make scme statement as I to the predictability of an individual's future behavior. Recognizing the technical variances between the methods and assumingI L that program effectiveness is a dcminant concern, the following considera-tions were assessed: 1. Administrative efficiency 2. Public acceptability 3. Social costs, i.e., potential of. constitutional infringements 4. Monetary costr All of the above factors contributed to the judgment of what was an acceptable and proper boundary for the program. Adding psychological assessment to the background investigation increases intrusiveness.* According 'e cost estimates given by psychologists at the hearing, it also wculd add approximately 530 to S156 in expense abcve that for an investiga-tion (Dr. Roseman, Tr. 299; Dr. Schultz. Tr. 315). There is considerable controversy as to the effectiveness of personality testing for this type of rt program. As stated in a leading text on psychological testing and per-4 (2 sonality assessment: j ? + i wSee Maderios and Schmitt, Public Bureacuracy: Values and Perscectives, f-North Scituate, Ma., Duxbury Press, 1977, pp. 125-127 for ciscussion of the pctential for abuse of psychological testing cf employees. ?O/6 2.54 io

A person's relevant past behaviors tend to be the best predictors o'f his future behavior. in similar situations. It is increasingly evi-dent that even simple, crude demographic i.ndices of an. individual's past behaviors and social ccmpetence predict his future behavior at least as well as and sometimes better, than either the best test r-based personality statements or clinical judgments." { Additionally, specific criteria which could be used for such a program f are not available, are untested, or are experimental. Those supporting (s psychological assessment recognized that its specific relevance to the statutory scope of the investigation, i.e., character, loyalty, and asso, cia-tions, might be less clear than for the full field background investigation, whic'h has been specifically developed to address these attributes. It should also be emphasized that the background investigation does address psychological factors, at least those which can be identified through past behavior. As stated in SECY 76-508, the Staff is continuing to study the value df psychological assessment. Standard criteria, comparative values of different procedures, and uniform adjudicatory procedures must a% be developed. 2.2.3 Resconse to Guestions of TVA and Ms. Levine The Staff, before recommending the access program as published, con-sidered the alternative suggested in the T/A question (NAC and psychological assessment), in addition to many other alternatives and permutations of the El various alternatives. Psychological assessment was always considered as an " add on" option to full field background investigations. The staff a considers full field background investigations to effectively assess the N WMischel, 'Jal ter. Personality and Assessment, New York, Jchn 'Jiley and Sons, 1968. H 20/6 235

statutory elements of character, loyalty and associations. Psychological assessment alone, does not provide sufficient information directly relatino to these statutory elements. In the Staff's opinion, the addition of an [ c NAC, which provides only minimum information about an individual's background, 5 would not correct this weakness. Thus, an NAC plus psychological assessment L was not considered an effective alternative. As previously mentioned there is a diversity of opinion on the E applicability and acceptability of psychological testing in determining the trustworthiness.cfindividuals. The Staff believes that 9.e full field background investigation is basic to the assurance required by this program. However, some Staff members felt that psychological assessment could provide additional information (see Enclosure D, SECY 76-508). The consensus reached by the Staff was that the added intrusiveness, lack of standard criteria, and non-uniform adjudication and additional cost of psychological assessment, offset any benefit to be gained from its use. 2.2.4 Industry Conducted Procram Personnel screening programs currently in effect at varicus nuclear power plants,.or planned as a part of the implementation of 10 CFR 73.55, suffer frcm a high degree of non-uniformity, as testified to by the Staff (i.e., Staff testimony, p. 6; T-31), as well as by industry representatives ch (Westinghouse Tr. 142). The ANSI 18.17 standard provides very general guidance concerning the s need for an employee screening program. This geNance is nut specific k. concerning either the kind of psychological examination (it permits a 20/6 256

finding concerning psychological condition by a general practitioner physician), or.'he nature and extent of a background investigr: ion. As a resul t, industry practice varies from a complete psychological examination I and a background investigation (limited to available information) to a ,L physical examination and an interview between personnel office staff and t the prospective employee. E To provide a more detailed response to the board's inquiry 6n behalf' of Ms. Levine, the Staff has attempted to categorize in Table 1 characteristics found in various screening programs proposed by licensees. These are: 1. Physical examination by licensed physician, which includes an opinion concerning the candidate's psychological ccndition; 2. An interview with a psychologist / psychiatrist; 3. A writ'an psychological test; ~ 4. A written psychological test and an interview by a licensed psychologist / psychiatrist; 5. An independent check (by letter, telephone, or interview) of the candidate's personal references; 5. Check with previous employer; 7. Check of educational records; 8. A search of court conviction records in the area of the candidate's Y residence (s); F 9. A check of police records; s 20f6 237 i k 13

lO. Check of current and/or previous residences, including contact with landlords, neighbors, etc., and 11. A credit reference check. f-g Not all of these steps are found in every program, as shown in Table 1. $c Of 39 facilities listed, essentially all intend to give a medical }s examination to new employees. In several cases the report by the examining { physician includes a statement that no emotional instability was noted. The L Staff does not consider such a statement (step 1) to be psychological screening. The largest fraction of these utilities, (54 - 21 licensees) have chosen to rely on background investigations as opposed to psychological screening. Those utilities specifying a personal reference check as the only " investigation" conducted were not included in this category. A substantive background investigation, for the purpose of this categoriza-tion, included, at a minimum, one or more of steps (5) through (11) of the individual steps described above. Thirty-one percent (12 licensees) of the 39 utilities with security plans under review did net make any specific ccmmitments concerning their proposed screening programs other than the medical examination discussed above. Some of these security plans simply state that the program will "folicw 2F the guidance of ANSI 18.17" without further detail, while others committed S E themselves only to meeting the " intent" or " objectives" of ANSI 18.17. [ -c Still'others stated that their screening consists of interviews by per- [ ) sonnel departmr.t staff, and/or the future supervisor. 1 20/6 2.58 u

l TABLE ONE. Existing Nuclear Power Plant Screening Measures h E I c.

n. -

.p. C I-u 2 0 r' 6 2.59 15

/ g 4 1 g / 3 1 g / / 2 1 g g / / 1 1 g g g / 0 1 I / 0 g / E E 0 S g N E / / / /g / C 7 IL g g g f / / / ,/f 6 g g y / 5 g / /g / / / g / /g 4 f g g g / / 3 f y 2 grg<1[ g 1 / / / / 1 g g g I y h k ln c c y e n O s a h g P ic k C n y c i t i l s s t b e c k k y l s k h k r h u e w c c o c D C e c k e P o T e e h t h e c h / l i y o v e C [ b h a C n C R k h l r o c n e C e p c c e e n s ) ig c c c t i y l o h e n n a s o n y r e o o i C c i v P I e l c n c t E o h h e lp e i ar r c l e is l t l v a c t f s e m o e e c i y I n w R c f e R E n o e e ig s l w P T o C i s o l l s l u e n n a u it ( l o t o e e n o a t o i i i h v o i c r c l v t t r c s v o l i r e. l u i e e t t c e e r o l r r y t o e s P W W P - P E C P C P s n I G Jos@ N* e

LICENSEE 15 10 17 10 19 20 21 22 23 24 25 26 27 28 Psycholouical Eval. by Physician g g g/ / ,/ Intorview with Psychologist Written Psychological Testing only / / Written Test & Interview by Psych. Personal fleforence Clicck / / / / / / g/ l Previous Employment Check gf g/ f gf gf f gf gf f _'g/ _D-Eclucation llecorals Check / / g/ / / / g/ N _y- <f Court (Conviction) flocoral Check g/ g/ g g g g __ E _ Police Ilecoral Check g/ g/ m Cecilit fleference Check g/l N, Psevious flesitience Check [ g/ U f $ ]Qlf ] O

LICENSEE 20 30 31 32 33 34 35 36 37 38 30 Psycholouical Eval. by Physician yp g g g g ,j g Interview with Psychologist Written Psychological Testing Only Written Test & Interview by Psych. Personal Reference Check g/ g/ __ p -- Ti; Previous Eniploymont Check g g/ g,,# { g g g 4 Education Records Check f/ g o _g_ Cour1 (Conviction) Record Check y/ .5 _ [ --- l'olice flecord Check y/ y/ g/ g Credit lieference Check 7/ / g N Previous llesidenco Check g/ / g/ ~ C h i~; v # t..c i4 E N O

Eight percent (3 licensees) made ccmmitments for both psychological testing or interviews with a qualified psychologist / psychiatrist as well as a background investigation. Another eight percent (3 licensees) made g cemitments only for personal reference checks. F None of the 39 licensees examined opted for psychological screening ? r without any spi:ific commitment to scme fonn of a background investigation. [- E. This ccmpilation of proposed screening programs supports the Staff's L testimony concerning the large degree of variation of industry screening programs. This fact is further il?ustrated by an examination of the individual steps employed by the group of utilities which ccmitted to background investigatiens: All in this group include a check with the previcus employers, 50% (12 licensees) of them check educational records, 33% (8 licensees) investigate current and previous residences, 25% (6 licensees) check the prospective employee's credit rating, 33% (8 licensees) attempt to cbtain police records, "where available," and 29% (7 licensees) check public court conviction rec. ds. The pericd for which such investiga-tions are performed ranges frem the last two years to the last ten years. The St~aff believes that these statistics de cnstrate the need for a mandatory, more rigorous, and consisten: goverr. ment access authorization program. It is clear that the industry standards have not resulted in a _m consistent program, as a person could be accepted by one utility and rejected S; !v by another. There is a significant difference in focus of these programs 5 a is 90/6 243 -[

compared "to the NRC proposal. The NRC proposal focuses narrowly upon concerns of access, while the industry program appears to be more broadly focused on general employment concerns. The narrower focus is necessary in I f minimizing excessive or irrelevant measures or judgments. As an example of { this concern, Wisconsin Electric testified (Tr.176) that Wisconsin Electric 3 administers the Wechler Adult Intelligence Scale and the Sennett Mechanical ? E Comprehension test,. Form No. VV. The Wechler is one of two (the Stanford. Binet being the other) IQ scales in general use. These tests are intended to assess intelligence only. The Bennett Mechanical Comprehension test, is intended, according to its author, to measure, "...the ability to perceive and understand the relationship of physical forces and mechanical elements in practical situations. This type of aptitude is important for. a wide variety of jobs and for engineering training, as well as for many trade school courses.", Neither of these tests hat any demonstrable or statistically significant relationship to the matters of character, loyalty and associations. Although it is not entirely clear from Wisconsin Electric's testimony whether or not these tests are specifically used for such purpose, the implication is that they are, or that at least they count towards such assessmenc. One last conment concerns the ability of private concerns to acquire the same criminal history information as Federal investigators. Police I iT records may be available to private concerns in some localities, and that 3 lN 17 ?0/6 244 f

cueinwd for certain, occupations, e.g., an::ed guards, National Crime Information Center (NCIC) access is available. However, in most circumstancas, court records are the major scurce available. What has not been mentioned is C ?! the practical problem of obtaining information frem local court records Et T which are usually maintained chronologically and/or by docket number. j h Unless the subject of an investigation has already admitted the criminal i. m. record, chances of finding it are remote. This problem does not occur k where access to NCIC and other Federal records is available,~ as records are filed by namegeg' social security number,s e, e d.e..- p.%d iA uQ b. 2.2.5 Non-Investigative Safecuards Measures Certain non-investigative techniques, such as the two man concept ~ compartmentalization, and surveillance have been determined to provide some safeguards benefit against the insider. Scme of their values and limita-tions are as follows: 1. The two man concept

• may discourage an individual's motivation to commit a malevolent act; however', a dedicated individual may still be able to deceive or overpower a person who is expected to monitor him.

This is a reasonable ex;:eccation if both individuals are supposed to perform any ' degree of attention requiring work while having access to the ama in question. a$9 rk 2. Compartmentalization is a partial solution to the single insider reactor sabotage problem in that it eliminates the possibility of one ) y E "Aisc referred to as "two man rule." $r D D P P }[ R [J ] L: a s 2 18 Q]

u..; -

A..g

insider being able to ccmplete the sequence of events which could trigger radiological sabotage from a single location. C23 3. Surveillance would allow identification of actions which coull 4M it5 result in sabotage as lono as they could be identified as such by the monitor. If these actions could be completed before response il r L. could be initiated and completed, surveillance would be of limited value. The Staff believes that a variety of redundant and ccmplementary measures are necessary to achieve high assurance prctection against the insider threat. The above measures, in and of themselves, t are not considered to provide this protection. 2.3 The Imuact of the Procosed Rule on Manecwer Recuirements and Costs Durina Planned Outaces at Power Reactors Power reac'er outages require special consideration because of the large number of pecple requiring access to the protected and vital areas. The mest frequently quoted numoers for the additicnal personnel required for a routine refueling outage are in the 300 to 800 range. The higher 3 20'6 246 !E '!5$ ?!a L_ 19.

numbers are expected to apply when any substantial amount of construction or equipment installation or modification is included in the cutage schedule. The Staff testified (Tr.123), and centinues to believe that a 5--- e V. significant fraction of the personnel involved in reutine refueling cutages p are likely to be employees of reactor vendors and other firms specializing in nuclear services. The Staff also agrees with the testimony by Wisconsin 6@ a Electric Power (Tr.180) that depending on the work involved, a significant. number of outage personnel could be hired frcm local building trade unions, partiev'arly during outages inval,ving construction. While the Staff has no / data to disagree with the Wisconsin ETectric estimate of a vender ccmpenent of less than 10". of the refueling personnel, it is necessary to put all of these figures into perspective. Firsti it should be noted' that either U or R access authorization is necessary only for those personnel requiring unescorted access to the protected or vital areas of the plant. Grcups of individuals not having access authorizations could be admitted under escort, where supervisory personnel (either licensee or contractor employees) would receive access authorizatien and serve e; escorts to the other perscnnel. Secondly, the higher level (U) access authori:ation, whose cost was stated to be prohibitive by one witness (Tr.1g2) for the large outace con- -3 ~ [$[ tingent, is required only for unescorted access to the vital areas of the plant. The fraction of reactor vendor and other nuclear industry service (g crganizations would be larger among the grcup requiring access to vital areas $b L_ ?0/6 24/ 20

than in non-vital areas, where union hall and construction personnel would be more numerous. g ,a Third, the larger numbers of local craft union and construction C.M personnel are required for those larger outages when construction and/or g m equipment installation takes place. During these longer outages the gi vulnerability of the plant to sabotage decreases, particularly following u depressurization and cool-down of the reactor. This would result, during cytages, in some vital areas of the plant no longer being as susceptible to sabotage. In such circumstances, licensees may request NRC approval of temporary redefinition of vital areas. Unescorted access to these areas could be permitted to personnel with the lower access authorization level. This would further reduce the number of personnel requiring the higher cost access authorization. In summary, the Staff recognizes that special measures may be required during power reactor outages, particularly those involving construction ~ activity. To the extent that a plant's vulnerability would be reduced, the staff beli. eves that a liberalization of access centrols may be accept-able. These measures must be addressed on a case-by-case basis in the facility's security plan. In combination with escorting and access authori-zation of supervisory personnel, the staff believes that these measures can E ( provide adquate protection as well as effective ccmpletion of outage activities. +4 2.4 The Suitability and Relevance of 10 CFR Part 10 Derocatorv Information N

gg Catecaries for Material Access Authorization 5

l__ In the Notica of Hearing published Cecember 23, 1977, the Cc.r.ission s;:ecified that the suitability and relevance of the 10 CFR Part 10 criteria 21 20/6 248

for the access program would be one of seven issues to be considered in the proceed'ng. Testimony and questions were received from a number of participants i C on this matter and the Hearing Board adc:ressed a numoer of questions to Staff g

I on the criteria.

g The Staff recognizes that criteria different frca those used in Part 10 as part of the classified information program could be developed 5 L. for the access program and that such criteria could be an improvement over the existing criteria. In fact, the Staff at one time attempted to develop revised criteria and a copy of that criteria was given to the Board during the hearing. In reviewing the question of whether the Staff should develop its own criteria independent of the Department of Energy, the Staff considered: 1. That 00E has a contract under way with Battelle to review the Part 10 criteria and the results of that study should be available in early 1979. 2. That Executive Order 10450 which formed, in part, the basis of the Part 10 criteria and is the basic authority for personnel securi.ty programs in the Federal government, is in the process of being revised. 3. That 00E.for its access program utilizes the criteria in 10 CFR Part 10 and its access program is also based on Sectica 161(i) of the Atomic Energy Act of 1954, as amended. Putting aside the question of whether NRC is bound in accordance with the legislative history of the Energy Reorganization Act of 1974 to the same criteria DOE uses,* compatibility with the DOE program is important tecause 7 approximately 90% of the personnel at fuel cycle facilities subject to Part 11 already hold DOE access authorizaticns. ,bu m2 "See the Staff's statement made during the hearing (Tr. 531-533) that there 53 is a substantial question in view of the legislative history to the Energy 3 Reorganization Act of 1974 (H. Rept. 93-707 at 27, 5. Rept. 93-980 at 84) as L_ to whether the NRC can develop independently of COE basic precedures and standards to implement Section 151(i) of the Atomic Energy Act of 1954, as amended. 20/6 249 22

4 '. That there exists a need to minimize duplication of effort in transferring. clecrances frem individuals who already hold Q or L security clearances under the existing COE/NRC security clearance programs. r 5. That if revision is necessary to the criteria for the access program I under Part 11, revision is probably necessary for the information i security program under Part 10. 2i Based on these considerations, the Staff believes it is not appropriate @e at this time to establish criteria for the NRC access authorizati'on-program 3 L different from those in 10 CFR Part 10. However, the Staff intends to work closely with the Department of Energy to review the existing criteria con-sistent with the Staff's commitment given to the Ccmmission in SECY 76-508. In any event, the current criteria will not be applied in a mechanical fashion. Rather, the criteria will be used as a means to identify potential questions wnich may require obtaining furthbr information concerning the particular circumstances or a closer examination of the record as it might apply to access authorization. This treatment of the criteria would be required if proposed 10 CFR 11.21 is promulgated and would be consistent with the current application of the criteria under l'0 CFR 10.10. An additional measure of the historical use of the criteria, and hence its suitability, is as follows: Statistical data maintained by the Division of Security shows that during the period January 1,1947 to June 30, 1972, 1,010,720 clearance requests were processed by the U.S. Atomic Energy Com-y mission (AEC). Of this total number,.l.2% or 12,897 were found to Q contain substantially derogatory information. Despite the develop-

s ment of substantially derogatory information, 47% or 5,084 of the latter cases resulted in the granting of security clearance based on k

favorable resolution of such information. Further, 48% or 6236 of bi the 12,897 cases which developed substantially derogatory information 3 were subsequently discontinued. The remaining 5% or 577 cases resulted { in the denial of clearance. 20/6 250 23

During the period January 1,1975 to'Oecember 30, 1977, approximately 3,500 personnel security clearance requests were procsssed by the Division of Security, U.S. Nuclear Regulatory Cerrmission (NP.C). Of this total number, approximately 210 cases were found to contain both substantially and non-substantially derogatory infomation, C based on investigation. One such case resulted in the denial of t; security clearance. Another such case will be undergoing review by a h Personnel Security Appeal Board. In the remaining 208 cases where y processing was continued, security clearances were granted based ,t; on favorable resolution of such informatien. if Therefore, the Staff believes that the current criteria can be applied in a i L.. way which is suitable and relevant for the access program. On this subject, the hearing board raised a question concerning the effect of cultural differences that might be uncovered as part of an investigation (Tr.140). It is the Staff's position that persons should. meet the same standard for associations, character, and loyalty regardless of their cultural or environmental backgrou$1d. A person should not be granted access because his environment or culture permitted him to be untrustworthy, etc. However, facts concerning local environments or cul-tural differences might explain or place into proper perspective the informa-tion developed. Specific new procedures do not need to be developed to provide such consideration as the existing procedures such as the personal interview are sufficient. Finally, the Hearing Scard raised a qu'estion as to whether the Staff intended to issue guidelines on the application of the Part 10 criteria to the access program (Tr. 544). Such guidelines have not been developed. The Staff does intend to develop instructions Ad and conduct training sessions to assist staff reviewers to assure that tt* 4 i'il criteria will be _ applied unifomly for the access program. y V-2' 20/6 251

2.5 The Extent to Which a Clearance Procram Should Se Credited Toward Meetino the Performance Reouirements of 10 CFR 73.55 and Procesed 10 CFR 73.20 The Staff believes that a variety of redundant and c mplementary ceasures W are necessary to achieve high assurance protection against the insider threat. yc (Jnder certain circumstances and in selected areas, the combination of existino E measures such as access control, compartmentalization within vital areas, G search equipment, tamper-indicating alams, remote surveillance equipment, .2 L. etc., may combine to eliminate the need for application of the 2-man concept where personnel trustworthiness has been established through the implementation of an access authorization program. 2.5.1 The Provisions of 10 CFR 73.55 (Reactors) The Staff's approach to the protection of a nuclear power plant against sabotage follows the traditional defense-in-depth concept. For the case of sabotage by the insider, this approach consists of doing the best job reason-ably possible of preventing a sabotage attempt by the insider in the first place. Major components of the safeguards system include equipment and proce-dures to control access to all vital areas of the planc and to control activity in the more sensitive areas (Type I vital areas), i.e., these areas wherein successful sabotage could be achieved by a kncwledgeable and skillful insider entirely within that area. Such measures could include additional "comcart- ]Xp mentalization" i.e., construction of additional barriers which would separate y e co-located vital equipment for the purpose of reducing the nuccer of Type I d vital areas. Another measure bearing on the control of unauthorized activity Q is the prevention of unauthorized use of explcsives or other contraband by excluding these materials frem the protected area through search of all indi-viduals at the protected area access portais (see aisc the reasons discussed 25 20'6 252 1

at 2.2.5). Complementary protection measures that could be provided to reduce t6e ; robability of successful ccepletion of the sabotage attempt, include (1) a ecmprehensive, government administered, employee screening program, C (2) a continucus employee assessment program by supervisors and (3) continued != employee training in security related matters. [f. sc The Staff believes that a variety of redundant and complementary measures l=5 are necessary to achieve high assurance protection against the insider threat 6 L contained in 10 CFR 73.55. Strengthening of the assurance of personnel trust-worthiness by implementation of a uniform government access authorfration pro-gram as proposed by the staff would, in most circumstances, permit elimination of the use of the "two-man rule" for persons having access authorizations, minimi:atien of additional construction of barriers beyond that already required to achieve further ccmpart=entalization at existing sites for the elimination of Type I vital areas, and elimination of routine " pat-down" searches where equipment capable of detecting unauthorized material is available, without reducing the level of sabotage protection against the potential insider at nuclear power plants. Other measures, particularly those required for positive access control to vital areas, would be centinued in crder to maintain reasona.ble redundancy for the defense-in-depth concept. These a:her measures wculd include the installation of access control equipment at existing subdivisions of vital areas, the use of tamper alarms, and remote surveillance equipment, where h ?$ appropriate. gs 2.5.2 The Provisions'of Procosed 10 CFR 73.20 71- $:3 The Staff's position on credit of access au'.horizations toward the { i performance requirements of preposed 10 CFR 73.20 has not changed since stated in the original staff written testimony (p. 22). I: is ex;:ected ze 20/6 253

that sc=e consideration will be given to access authori::ations, however, overall performance assessment criteria are still b'eing formulated. r-2.5 The Cesirability of Acolyino the Rule to University. Research, and Trainino Reactors Subject to 10 CFR Part 73 E {% There appeared to be some confusion concerning the extent to which j$. the proposed rule would apply to non-power reactors. The Staff testified g (Tr. 28) that the threat of sabotage as well as theft of formula quantities ~~ of SNM needs to be considered for non-power reactors. The sabotage threat is of concern at power reactors, where the con-sequences of sabotage could far exceed the limits specified for the design t basis fission product release accid.ent postulated in 10 CFR 100. The Staff is currently analyzing the potentiaT' consequences of sabotage at non-power reactors. This analysis is not yet ccmplete; however, prelimi-nary results indicate that the potential consequences would not exceed Parc 100 guidelines, with the possible exception of some high power research, training or test reactors. (Tr.28) The scenarios by which such a fission product release could be achieved from a non-power reactor are very limited, and include in all cases identified to date, a relatively large quantity of explosives. Based on these preliminary results, the Staff believes that adequate sabotage protection of such facilities can be g achieved b, physical protection devices, so that an access authorization i@.c program for protection against sabotage would not be required for any toh operating non-power reactor. Although the threat of an insider may exist g L_._ 20'6 254 27

~- at these facilities, the possible sabotage scenarios available to such an insider would be limited, and successful ecmpletion of these scenarios cat.ld be pravented by existing or planned physical protection measures. r-Such protection measures are being censidered in a separate rule-aaking Q ?. action currently under development by the Staff. J h A second consideration for non-power reactors is the potential for R ?! theft of highly enriched SNM of a sufficient quantity to build a clan- [ destine explosive device. All but about six non-power reactors fall into the category of possessing less than the formula quantity of SNM, and therefore would be exempt frcm the proposed rule. Those facilities that possess more than formula quantity are subject to thi.s proposed rule and other rules that deal with protection of for nuia quantities of SNM against theft. The affected licensees are aware of the additional requirements that could be imposed on them and are taking steps to reduce the amount of material on-site or otherwise remove themselves frem being subject to these requirements. 2.7 Imcact of the Procesed Clearance Procram on Transcortation of Scecial Nuclear Material A change frem the Staff's written and oral testimeny concerning the impact on transportation involves truck drivers and dcmestic aircraft pilots under the requirements for an access authorization. This returns .g. the Staff's position to that published in the proposed rule, and addi- ,3 .a tionally requires access authorization for one other rated pilot member of 3 A. 20/6 JS5 L 28

e a dcmestic aircraft crew. This change reflects Staff's recognition that the crew members of a cargo craft could take over that craft and that FAA precedures do not provide assurance of trustworthiness. Crews composed of foreign citizens flying international shipments T

f would be covered under separate agreement between the U.S. and the foreign 2?

government in question. j ~ 5 3.0 REVISIONS TO THE PROPOSED RULE 3.1 Power Reactor Emolayee Grandfatherina Many of the people who comented on the proposed rule have indicated that scme provision should be made to recogni:e the fact that scme icng-term employees have demonstrated.their trustworthiness to a degree by continuous reliable service to the utility. The Staff during the detailed implementation of 73.55 has been observing this situation. 10 CFR 73.55 implies that a high degree of confidence must be established and maintained in tha trust..arthiness of those persons given unescorted access to vital areas within nuclear power plants. The Staff centinues to believe that the proposed "U" authorizations for unescorted access to vital areas is necessary. However, the Staff has concluded that an acceptable basis for evaluating the trustworthiness of certain utility and contract employees is "grandfathering." Grandfathering would permit g unescorted access to vital areas to persons meeting all of the following fh a conditions: !?--

=

20'6 2.56 Bst L 29

.. s 1. Their normal. work functions have required them to have access to nuclear pcwer plant vital areas, and they have been in such a position for at least five (5) years, hM I6k 2. The employer has certified their trustworthiness over this period, 5 II and 9 1 L 3. They have been subjected to an NRC sponsored NAC investigation with favorable results. The rule should be revised to permit such grandfathering. Access authort-zation granted through grandfathering, designated as U(g) authorizations, will not be transferable for other government personnel security programs ~ ~which require full field background investigations. 3.2 Interim Access at Nuclear Power Plants The Staff recognizes that during the implementation peried individuals requiring access should continue ta be permitted such access pending the outceme of the access authorization determination. The time period to make such determinations may vary frcm individual to individual, in some cases due to causes beyond the control of the affected employer or employee. Qik Accordingly, interim access may be continued, assuming that no substantial 73 i,7 derogatory information is developed during the investigation, under the Q follcwing conditions: f 1. The individual was granted unescorted access to vital prctacted areas en the effective dace of the rule er was previously granted 20'6 257

such access and the utility knows of no reason to deny such access. .b 2. The employer has submitted the required documentation to obtain a L. "U" or "R" authorization. I r g a 3. The employee has a need for access. [ 3.3 Non-Power Reactors The rule should be revised to specify that non-power reactors possess-ing less than a formula quantity of special nuclear material are not subject ( M &f D f bh N ['M ^H'M to the rule. ,~ x .s.h, 3.4 Transcortation f The rule should be revised to include both domestic pilots and one additional rated pilot member of the crew as requiring access authoriza-tion. International transportation by other than dcmestic carrier would be covered by separate agreement between the U.S. and the foreign government involved and not by this rule. 3.5 Imolemencation Schedule Implementation should occur as soon as practicable. The original G proposed schedule (18 months) would provide the desired level of protection

5 41 in the shortest time frame.

55 4 However, the initial work load would require a significant increase .4 in Staff resources (see, for example, Enclosure C, Secy 76-508) and lead f time te hire and train this additicnal manpcwer necessary. Lead time 31 o k k MA m 20/6 258

would also be necessary to permit the Civil Service Ccmission to hire and train additional investigators. .r In addition, the Controller notes that when this initial work load { surge is handled then the clearance requests would fall off dramatically, I r-as would the manpower requirement level, until the fifth year of the program, when the reinvestigation cycle begins. i t By extending the implementation of the initial work load surge from-18 months to 5 years, a more even distribution of work load and a more constant and efficient use of manpower could be realized. This would be based on a work load of about 3,500 during the firs, 5 years of the program and about 5,300 cases during the second 5 years of the program, when the reinvestigation cycle begins. The. bulk of the work during the second 5 years would be reinvestigations which would require substantially isss man-hours to complete, than do new investigations, which would account for the entire work load during the firs 5 years of the program. In spite of the manpower concerns the staff believes that the pronsed rule should be implemented in accordance with the originally propused schedule. 4. CONCLUSION: In conclusion, the proposed rule, subject to the above revisions, E$ should be adopted. h i T.. Il ,.Qy & hr 4/5 b : M d. h y 32 M t 446.u d. g,j,g 30, h.m 4 9 g !,a a U, pf[ut.[ ] o '" "

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