ML19318C524
| ML19318C524 | |
| Person / Time | |
|---|---|
| Issue date: | 06/24/1980 |
| From: | NRC COMMISSION (OCM) |
| To: | |
| References | |
| REF-10CFR9.7 SECY-79-319, NUDOCS 8007010589 | |
| Download: ML19318C524 (67) | |
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UNITED STATES OF AMERICA O
NRC 2
0 NUCLEAR REGULATORY COMMISSION Pcrkcr-3 DISCUSSION OF HEARING BOARD REPORT ON CLEARANCE RULE bfml t'
4 PUBLIC MEETING 5
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8 Nuclear Regulatory Commission d
Room 1130 0
9 1717 H Street, N.W.
Washington, D.C.
h 10 Tuesday, June 24, 1980 g
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The Ccmissien met, pursuant to notice, at 10:05 a.m.
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BEFORE:
13,
JOHN F.
AHEARNE, Chairman of the Commission E
14 3
PETER A.
BRADFORD, Commissioner 2
15 l w
i RICHARD T.
KENNEDY, Commissioner 16 l j
M i
JOSEPH M.
HENDRIE, Commissioner d
17 VICTOR GILINSKY, Commissioner 18 I
l NRC STAFF PRESENT:
8 19 l MS. M.
NORDLINGER 20l l
E.
HANRAHAN 21 i H. SHAPAR 22 M. MALSCH R.
BRADY R.
BURNETT 25 i
i ALDERSON REPORTING COMPANY, INC.
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NRC STAFF PRESENT: (Continued) 2 B. EVANS 3
LEONARD BICKWIT, General Counsel i
4 B.ERICKSON e
5 MR. NULSEN h
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P,R O C_ E E D,I_ N,G S_
2 CHAIRMAN AHEARNE:
This morning, the Commission meets 3
on the Clearance Rule proceeding.
This, like many rules, has 4
been with us for some time.
It was in March 1977 the Clearance e
5 Rule was published for comment.
There were board hearings-held b
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6 in July of 1973.
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In August of 1978, the Commission asked the board to A
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recommend on the rule in addition. to summary -- in addition to d
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providing a summary of the record.
In April of
'79, the board i
h 10 submitted its report.
The Commission has held several meetings.
El 11 I have, at least, a record of one on June 5, 1979, 3
y 12 September 14, 1979.
We have accumulated a fairly sizeable volume 13, of paper.
We've had many reports.
I thought it.was appropriate 2
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14 to see whether or not the Commission could reach a conclusion on I
2 15 this issue <"uring Commissioner Kennedy's tenure because of this d
j 16 ; long record that has been developed on this issue.
as I
g 17 l It appeared responsible public policy would be an 5
5 18 l attempt to utilize the knowledge and understanding generated.
So, 5
19 I guess, with those sort of preliminary introductory comments, 8n 20 I would say that we have at least issues of: Do we take any 21 decision?
22 We still have in front of us the hearing board recommen-23 dation.
We do have the record of the hearing board.
We havc 24 issues of power reactors, research reactiors, t.wrtation,'and fuel 25l facilities. We have a nirber of..htions.
I'll turn it over to the i
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General Counsel.
MR. BICKWIT:
The Commission last met on the rule in 3
September _of '79.
At that point, it was decided that we would I
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go out for comment on a number of issues raised in that meeting, 4
or just prior to it.
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6 The comments were received a few months after that, but e
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the Commission has not met because it was the advice of this Xl 8
office and OPE to take a briefing on and insider threat study d
9 being done by the staff, and one dealing with insider threats
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10 being performed by the Department of Energy.
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f I2 appropriate to go forward.
I should mention.at the start of the 3
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g 13 meeting that we may be recommending at some point during the 14 meeting that the condition close -- close its session.
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We will try to keep those recommendations to a minimum x
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II f the subject matter can appropriately be discussed.
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18 l The questions that the Commission has to confirm -- we c8 I9 g
have attempted to divide it into three.
The first would be the 20 l type of rule that it wants, i.e., does it want a traditional 21 clearance program; does it want something on the order of what 22 the board suggested, which would be an indistry run program which t-l 23 would have some clearance aspects to it but would not be in any 24 sense traditional?
?
25 Does it want some other variant?
Does it want no rule ALDERSON REPORTING COMPANY. INC.
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at all?
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2 Second -- the second question would be the scope of 3
the rule.
Whatever the answer to the first question, to what
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4 kinds of facilities does the Commission want to apply this rule?
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Then, the third question would be what derogatory information 3n j
6 criteria does the commission propose to use in apply its rule?
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So, I would suggest that the easiest way to proceed, if M
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that breakdown is acceptable, to focus first on the question of dd 9
the type of rule that the Commissioners are inclined toward.
io 10 COMMISSIONER KENNEDY:
That seems almost inseparable E
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12 MR. BICKWIT:
I would have no problem with combining
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13 those two questions.
I just break them out for analytical useful-14 ness.
2 15 COMMISSIONER KENNEDY:
Okay.
Fine.
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16 MR. BICKWIT:
I think if you would want to combine them, w
g 17 then the question is where do the Commissioners stand on the I
18 I type of rule to be applied?
To which kinds of facilities?
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19 l If this is the case, does it want one type for one R
20 kind of facility and another type for another type of facility?
21 COMMISSIONER KENNEDY:
Okay.
22 CHAIRMAN AHEARNE:
Is that your --
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MR. BICKWIT:
That's it.
24 l CHAIRMAN AHEARNE:
I guess were I ended up coming out 25 ; was to view, as far as the facilities are concerned, to view the I
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three types of facilities differently.
2 I have put aside research reactors primarily because 3
there are a number of options that we have underway, reviewing
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4 research reactors.
I don't think, at least for myself, I was e
5 orepared to make a decision on how to approach that.
On the Ae 3
6 power reactors, I was prepared to accept the board's recommenda-Rg 7
tion.
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The board's recommendation was to put in place an d
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industry conducted program using revised ANSI standards.
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g 10 believe they had suggested background investigat. ions and El 11 psychological screening.
Then, finally for the fuel cycle facili-O d
12 ties, I would have recommended using what is essentially the --
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y 13 ; I think the DOE L clearance -- in our terminology an R clearance.
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14 MR. BICKWIT:
How do others react?
2 15 COMMISSIONER KENNEDY:
Can someone describe their j
16 understanding of the L/R clearance regime, and how it differs b
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17 ; from Q, just for the record?
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MR. BICKWIT:
Yes.
5 19 CHAIRMAN AHEARNE:
Perhaps the staff --
R 20 COMMISSIONER BRADFORD:
Also for me.
21l MR. BICKWIT:
That would fine with the staff.
I 22 l MR. BRADY:
An L clearance would consist of a national I
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23l agency check, FBI.
The L would equate to an R.
A Q would equate 24l to a U.
That would be based on a background investigation, i
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COMMISSIONER BRADFORD:
Are their criteria used the i
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same?
That's the so-called derogatory information criteria l
2 comply in the same way.
All that is different is that the sources 3
surveyed are different.
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4 MR. BRADY:
Yes.
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MR. SHAPAR:
Did you mention transportation?
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6 CHAIRMAN AHEARNE:
I was talking about the facilities.
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COMMISSIONER KENNEDY:
That leads me to another question.
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Is it possible in fuel cycle matters to divorce transportation?
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It seems to me transportation is inherent in the whole concept of b
10 fuel cycles.
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11 LdAIRMAN AHEARNE:
If you wish to move to transportation, D
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12 I would then have added the same type of clearance for any 5
13 dedicated transport.
l 14 l COMMISSIONER KENNEDY:
I was just asking.
It seemed 2
15 to me, and I am asking here again for the benefit of the record N
f 16 l and to clarify my own thinking.
I am asking these e::perts who d
y 17 i have plumbed the depths of this problem now for the past four 18 years to my recollection.
I thought they might be able to help 5
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19 lus with the experience which they have gained.
n 20 This may be one of the better study propositions for 21 ! the Commission, although it is one of a great many, as you I
i 22 indicated, Mr. Chairman.
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23 The Commission,. I think, has one of the greatest 24l records of regulatory dilatoriness of any of the institutions in i
25 the federal government.
An accolade which I think it should l
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deserve, and should be given it regularly.
I will do my best to 2
see that that happens.
3 (Laughter.)
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COMMISSIONER HENDRIE:
Just a slow steady --
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(Laughtcr.)
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0 COMMISSIONER KENNEDY:
Slow learners is better.
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7 CHAIRMAN AHEARNE:
Having --
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COMMISSIONER KENNEDY:
No deciders.
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9 CHAIRMAN AHEARNE:
Having said all that, was there --
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I want them b tell me what their 11 view is, having gone into this is such depth.
Is it possible, D
I 12 logically and reasonably, to separate a clearance regime which 5a 13 has to do with a fuel cycle facility, and one which has to do
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14 with the transportation which moves the material to it and from it?
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16 MR. BICKWIT:
I would say there are similar considera-W N
17 - tions involved in both choices.
18 COMMISSIONER KENNEDY:
What does that say?
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l9 MR. BICKWIT:
It would say that my view of the logic n
20 of it would be to treat both transportation and fuel facilities 21 in the same way, but as a legal matter --
22 I COMMISSIONER KENNEDY:
I did not ask for a legal judg-(
23 ment.
I asked for the logic.
24 i MR. BICKWIT:
I have given that too.
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CHAIRMAN AHEARNE:
Would you care to ask others?
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COMMISSIONER KENNEDY:
No, that is fine.
2 CHAIRMAN AHEARNE:
Joe?
3 COMMISSIONER HENDRIE:
There was a time when I was an t'
4 expert on the subject.
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(Laughter.)
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6 In fact, there have been several times.
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(Laughter.)
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8 CHAIRMAN AHEARNE:
It sounds like a lead-in to --
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9 COMMISSIONER HENDRIE:
It has not helped before.
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It seems to me we ought to go ahead D
y 12 with a clearance rule for access to strategic special nuclear 5l 13 ! material.
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15 that handle formula quantities.
It would seem to me that the 5
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17 i level or levels, on &te same criteria as the Department of Energy I
5 18 clearance program; since a number of the facilities that are P
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20 ! number of their employees screened under the DOE program.
21 l It appears to me to be an unnecessary confusion to 22 inject into some of these facilities a separate and different 23 ' regime.
So, on that basis as a policy matter, I would -- since --
24 I would go in that direction.
25 '
Now, it may -- I believe that is a little bit different i
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than your specification of a national agency, background check 2
only for those facilities, John, because I think some people would 3
then have to end up getting Qs and go -- be subjected to a full
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CHAIRMAN AHEARNE:
There is a mixture of clearances 9
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COMMISSIONER HENDRIE:
There are?
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CHAIRMAN AHEARNE:
Yes.
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COMMISSIONER KENNEDY:
The fact that we would require 10 for our otm purposes an L or R level does not imply in any sense
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If that requires a Q, the individual would simply require 7
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Obviously, if he had a Q, he would meet all the require-Mj 15 ments which would be implied by an L or R clearance.
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COMMISSIONER HENDRIE:
I would go a little bit beyond
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If there were employees who worked only on non-government I
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2I wuld say that our program ought to require Q clearances of the i
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t 23 l What is it, U in our specifications?
That is the 24 proposition that I go by, is that our -- I would propose a clear-25 ance -- set of clearance requirements which are fully equivalent i
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to the DOE requirements, just because we have these facilities 2
that do have the mix.
3 CHAIRMAN AHEARNE:
How would you propose determining
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COMMISSIONER HENDRIE:
I guess I will have to ask staff b
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if someone can give me an indication how that is determined on the R
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CHAIRMAN AHEARNE:
I was not asking how does the DOE d
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do it, because they make their -- they establish for themselves.
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10 My question was how would you propose we do it?
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11 l COMMISSIONER HENDRIE:
The same way.
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You mean, hire the DOE to do it for E
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COMMISSIONER HENDRIE:
I am asking the staff if they 5
2 15 have some idea on what basis DOE decides that you have to have 16 a Q, and you have to have --
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COMMISSIONER KENNEDY:
That is not his question.
5 18 l CHAIRMAN AHEARNE:
That is not my question.
Who is 5
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20 we would now be giving a clearance to?
Are you proposing Mr.
21 Brady's staff, security staff do that?
Mevbe staff has thought j
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MR. BRADY:
As I understand that question, it is how 24l would we determine whether a person needed a U or a R.
25 l COMMISSIONER KENNEDY:
Who is going to conduct the i
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investigation -
that is not the question.
2 COMMISSIONER HENDRIE:
I assume that.
You try yours.
3 You try yours then we will get back to that.
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4 (Laughter.)
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5 COMMISSIONER KENNEDY:
I thought the question was --
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CHAIRMAN AHEARNE:
It was.
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(Laughter.)
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9 COMMISSIONER KENNEDY:
Answer that question.
That is
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11 MR. BRADY:
They make a determination based upon --
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12 CHAIRMAN AHEARNE:
For them, but how about -- earlier
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These dre, 5j 15 right now, obviously the people who are not covered by DOE who z
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How would you go about deciding if you are going to havs I
18 ! a split, some of those getting a Q and some of those getting an
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How would you decide 20 which gets which?
21 MR. BURNETT:
Sir, we would do it the same way that 1
22 DOE does it.
The L is given to people that have access to the 1
23 information concerning the fuel at a particular site.
If they i
-24 i have access to the material, they get a Q.
I 25 !
COMMISSIONER HENDRIE:
I could not have said it better ALDERSON REPORTING COMPANY. INC.
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myself.
2 COMMISSIONER KENNEDY:
Then there is another question.
3 Having determined that X-number of people will require the Q
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4 level clearance, who is it who is going to conduct the investiga-g 5
tion, A; and B, who is it that is going to have to review all this R
6 data to ascertain whether, in fact, the clearance should be gran-Rg 7
ted?
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MR. BRADY:
A, the Office of Personnel Management.
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we would evaluate the information.
Y 10 COMMISSIONER KENNEDY:
What manner of workload does that 3
5 11 imply?
<m MR. BRADY:
When the rule was originally considered, we d
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We would l
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That was based on Qs and 2
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If there are more Ls than Qs, then that would affect our s
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16 staff.
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17 i COMMISSIONER KENNEDY:
It would be less, not more?
M 18 j MR. BRADY:
It would be less.
5" 19 COMMISSIONER HENDRIE:
Was the five person estimate EM 20 based on just the fuel facilities?
21 MR. BRADY:
It was based cn eleven fuel cycle facilities.
22 y MR. BURNETT:
Also, we are now down to five or six, so I
i 23l that when that estimate --
1 24 '
CHAIRMAN AHEARNE:
You mean, facilities?
25,
MR. BURNETT:
Yes.
I have letters form various i
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facilities with plans to the Commission, so even the eleven has 2
fluctuated.
3 COMMISSIONER KENNEDY:
There has been an achievement
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5 and a couple of other things that have to do with fuel cycle 9
j 6l facilities have been able to achieve the objective they had in-R oE 7
the first place, which is to shut the fuel cycle facilities down.
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So, we have really accomplished something over the d
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years.
zog 10 CHAIRMAN AHEARNE:
You are aligning yourself when you 11 say "we" --
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12 COMMISSIONER KENNEDY:
We, the Commission; not we as 5
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14 l COMMISSIONER HENDRIE:
I was in mid-description of b
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19 CHAIRMAN AHEARNE:
Would that mean that if the DOE n
20 decided to upgrade all of its clearances to Qs, then consistent 21 you would have us upgrade all of our to Us.
If they decided to 22 down-grade?
23 i COMMISSIONER HENDRIE:
We would take them all down to 24! Rc.
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CHAIRMAN AHEARNE:
It is really --
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COMMISSIONER HENDRIE:- If you have got a facility, it 2
strikes me as a very peculiar business to treat security different 3
for employees that work in this shed, and people over there.
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g behoove us to discuss with them the reasons they had done so.
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CHAIRMAN AHEARNE:
Except diat we would be establishing d
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our clearances, not on the basis of what clearances -- at least, z
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COMMISSIONER HENDRIE:
That is not the way I would put
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As I understand the record of this proceeding, it is a
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18 So, I would not say that my choice is one which is P
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20 in spite of being a less desirable clearance regime.
Okay?
21 I think uniformity between us, between ourselves and 22 DOE in the same facility, is a highly important objective.
I 23 ! see nothing in the regime which will thereby be established 24 which makes that regime, in my view, any less desirable as a 25, screening and clearance regire, than any other set of options, i
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.In fact, I see -- I think it is as good as any of the 2
rest.
So, I would not agree that uniformity compels me to choose 3
a less desirable course than I would have chosen if' DOE had not 4
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5 bgn t So far, I have only gotten to fuel cycle facilities.
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Would the staff remind me what their R
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proposition is for Fort St. Vrain?
8 MR. BURNETT:
Q, sir.
That is the one anomaly in the d
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system.
I h10 COMMISSIONER HENDRIE:
Okay.
If, as in when Fort. St.
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What a
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MR. BURNETT:
It would drop to the same as other reactors j
I4 I whatever the Commission establishes for that.
g 15 COMMISSIONER HENDRIE:
Okay.
Research reactors, I agree, z
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in light of the circumstances that attend upon them.
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With regard to transportation, once more you have I9 g
people who are -- have information about and are in physical 20 proximity to formula quantities.
It seems reasonable to carry on 2I the same clearance regime as in the fuel cycle facilities.
22 I have to ask, however, does that mean that we have to I
23! clear airline pilots and cabin personnel on the one hand, and 24 railroad engineers and conductors and brakemen on ne other?
25 (Commissioner Gilinsky enters the hearing rr at 10:30 a.m.)
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MR. EVANS:
We have checke'l with transporters.
Both 2
of them said they would welcome cle srances that would help them 3
learn about the trustworthiness of their employees.
The answer 4
to your major airlines would be no.
The bottom line on that 5
g ane is there is one air transporter of nuclear material at this 9
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time.
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I don't know what the name is.
We talked specifically A
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with them.
They said they would also welcome clearances.
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COMMISSIONER HENDRIE:
I guess if we -- now, let's see.
O 10 What's happens -- what happens when Lufthansa flies into Kansas E
11 City to pick up a load, or whatnot?
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12 MR. EVANS:
This problem was worked out with interna-5ag 13 tional programs.
We agreed to accept foreign services and
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14 assurances for adequate sfaeguards.
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COMMISSIONr.P HENDRIE:
Does anybody but this outfit that 2
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16 keeps changing its name, which in itself makes me less uneasy about w
6 17 l requiring clearances from their people --
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I8 CHAIRMAN AEUGNE:
I think it might be the pilots who P
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It might be soneone else responsible for the n
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l Al (Laughter.)
22 f COMMISSIONER HENDRIE:
Nobody else flies formula
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l 14 l MR. EVANS:
No, sir.
That's right.
l 25 COMMISSIONER HENDRIE:
Okay.
With those kinds of foot-i l
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notes on the transportation situation -- on transportation, I 2
think the board's recommendation seems as good as we are likely 3
to do at this time.
So, I agree with you there, John.
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4 Although, whether it ought to -- it would go in that 5
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fair amount of work to enunciate the guiding principles for this R
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industry run check program.
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I think we probably owe people another comment round d
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when that proposition is drafted, if we go that way.
10 CHAIRMAN AHEARNE:
General counsel?
3 11 MR. BICKWIT:
I think you do.
You can split up that D
p 12 feature of the rule from anything else you have, but I agree with 5j 13 that.
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COMMISSIONER HENDRIE:.
I think the record in hand
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If we go in the board -- as I
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20 l MR. SEAPAR:
Will this mean another hearing on the 1
21 new proposal?
l 22 COMMISSIONER HENDRIE:
Since the results of the last 23,' hearing might he characterized as somewhere between ureless and 24 l chaos, it seems to me that notice and comment is about as much l
25 ; as this subject can stand.
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I guess I would take exception to 2
your description of the results of the last hearing.
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I agree with that, d
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In any event, having agreed with z
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I think on this occasion, I agree I4 with that, too.
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Was there something -- some x
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Research reactors.
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2l COMMISSIONER GILINSKY:
Are we talking about research 22 reactors that have formula quantities of the material around, or l
l 23f are we -- is this just personal sabotage, or the possibility of 24 sabotage?
25 I am wearing sunglasses because I misplaced my other i-ALDERSON REPORTING COMPANY.1NC.
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glasses and cannot see-without them.
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(Laughter.)
2 COMMISSIONER HENDRIE:
I thought that was because this 3
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(Laughter.)
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The Mystery Commissioner.
6 k7 (Laughter.)
8 COMMISSIONER HENDRIE:
I think that applies to both --
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What is that rationale for k.
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5h COMMISSIONER HENDRIE:
I don't necessarily regard it 39 R
20 that way.
In terms of promulgating a general rule relating to access to this kind of material, it certainly would be desirable 21 22 to sweep it all across the board.
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reactors are sufficiently different from around the fuel cycle 24 1
facilities and transportation organizations that we have been 25 ALDERSON REPORTING COMPANY, INC.
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talking about in the main here, that I do not find the pr7 visions 2
that seemed to me reasonable for those fuel cycle facilities to 3
be necessarily the appropriate rule provisions for research
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us out of this proceeding on how to handle things at research
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reactors and all the ramifications of those things.
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MR. BICKWIT:
The distinction I would not view as 21 critical, with respect to litigation possibilities.
So long 22 as you have a rational basis for distinguishing research reactors 23 from other facilities, you will previal in litigation, assuming i
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COMMISSIONER BRADFORD:
What is the rational basis?
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MR. BICKWIT:
The rational basis -- certainly one would 2
be, at this point, the Commission and the staff are studying the 3
security aspects of research reactors, all security aspects of
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Is that a fact?
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That is a fact.
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COMMISSIONER GILINSKY:
We are also studying the fuel ic 10 cycle facilities.
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11 CHAIRMAN AHEARNE:
We are not as far along on those.
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In particular, you do not have 5
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guishable in the sense that at research reactor, you do not have 24 bins, trays, pans, cans, or whatever of this stuff sitting-in-l 25 ; storage rooms or. vaults, being processed, moving from one place I
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to another in the facility.
2 It is in reactor cores, the formula quantities are in 3
reactor cores.
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I think that is thetargument e
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I see the point.
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a fuel cycle facility is guarded.
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He is saying, what is the 5a 14 difference between me working in this facility and a student just 5j 15 like me working in that one?
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They have imposed a set of barriers in 70 your area."
l 21 It may be sufficient to say the second thing which you l
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'L 23 that a person of your characteristics cannot, in fact,. get at 24 ;I the material as easily in a research reactor.
25,
I do not think you can sustain what would otherwise l
1 ALD2RSON REPORTING COMPANY, INC.
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be a violation of the equal protection clause of the Constitution, 2
just by saying "We are thinking about one category.
We have 3
acted."
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CHAIRMAN AHEARNE:
Wouldn't that depend on how long?
5 COMMISSIONER BRADFORD:
The length of time --
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Peter, that sounds peculiar to R
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Just all kinds of things.
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Many agencies are covered by OSHA,
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20 COMMISSIONER GILINSKY:
We have been chewing on research 21 reactors since 1975.
l 22 COMMISSIONER BRADFORD:
I am sure that there is some 1
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It is 24 not an area that I have looked at, or asked anybody else to do a 25 : memo on for-me.
My fundamental concusion would be that at best, i
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you could buy a little bit of time, then perhaps cover the other 2
area in the course of the proceeding.
Certainly, if you could 3
show that similar people -- people with similar problems were
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MR. BICKWIT:
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13 l COMMISSIONER GILINSKY:
I tell you what bothers me l
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about this:
there are obviously differences.
We can pick up 2
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5 18 The professors and students are, in effect, more people E
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We can imagine ourselves in these facilities.
n 20 COMMISSIONER HENDRIE: I have had graduate students.
So 21 have you.
.I think they're the finest sort of people.
22 CHAIRMAN AHEARNE:
I think you have to reach your own i
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I do not think 24~
you_can attribute to the^ Commission a position.
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COMMISSIONER GILINSKY:
I have not come out_yet.
Let l
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me ask:
What is the difference in physical security at research 2
reactors with formula quantities, and the corresponding fuel 3
fabrication facilities that would supply dust reactor with the e'
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fuel?
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MR. BURNETT:
I will address that, Mr. Kennedy -- I
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I am sure he wants to know, d
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The research reactors were exempted --
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I think whatever we dicide to do in the clearance, we program.
G 19 go along with what are we doing -- the level of security that is gn 20 going to be requried at research reactors.
21 I do not think anybody is suggesting they be deferred 22 because of that particular group of people.
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24 with that facility.
25 I think that this type of a clearance program would go ALDERSON REPORTING COMPANY, INC.
26
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hand and glove with those determinations.
I think the staff could 2
support deletion or deferment of that aspect until we have formed 3
an opinion on the program.
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4 As P..r your difference as to what they are living to 5
now; as you know, facilities that have had quantities are subject 6
to the upgrade rule by guards, the annament, the extra levels of R
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Does that apply to the research -
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14 response plan.
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The campus police then 2
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They do have a E
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level of protection to find people in there at unauthorized hours, n
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21 They do not have the extensive requirements of the 22 upgrade rule.
23 '
CHAIRMAN AHEARNE:
A number of reactors to which this 24 would potentially apply is concinually decreasing.
25,
MR. BURNETT:
That is right.
It is now two to three.
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COMMISSIONER GILINSKY:
Two to three facilities?
2 MR. BURNETT:
Yes.
3 COMMISSIONER GILINSKY:
Which are those?
f' 4
MR. NULSEN:
General Atomics and UCLA.
5 COMMISSIONER GILINSKY:
Are the only ones left?.
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MR. NULSEN:
RPI has some fuel they are getting rid R
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When they get rid of that fuel, they will be the only ones.
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That is out.
The ones that aro left are Y
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If that exemption trere not in R
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You would have about four more.
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As you know, the 100 rem is being studied.
2 15 COMMISSIONER GILINSKY:
The number of fuel cycle facili-5 g
16 ties to which these sorts of rules would apply are how many?
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17 MR. BURNETT:
Five.
l 18 COMMISSIONER GILINSKY:
Also small?
cs 19 MR. BURNETT:
Also small.
I can give you those names.
g 20 I They are AI, Owen, Hanford, General Atomics, and --
l 21 i COMMISSIONER GILINSKY:
What does Hanford have?
22 MR. BUPNEIT :
They have plutonium.
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COMMISSIONER GILINSKY:
They are storing fuel.
Is it 24 in fabricated form?
25 l MR. BURNETT:
Pardon?
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COMMISSIONER GILINSKY:
Is it in the form of fabricated 2
fuel?
3 MR. BURNETT:
Oxide.
4 CHAIRMAN AHEARNE:
Questions?
Positions?
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You missed the beginning of this discussion.
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see, what kinds of facilities or activities.
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Victor, Peter?
d 12 l COMMISSIONER BRADFORD:
I have a fair number of Eo y
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By way of position, I mm comfortable with going
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C 19 l clear where we are going to come out on it.
20 l Are you also comfortable that at the end of the 21 Commission's deliberation on research reactors, if in fact there 22 are research reactors that involve access to formula quantities 23 of SNM, and the Commission concludes it deliberations on that 24 subject by saying that they will be under a substantially less 25 l rigorous regimen than the fuel cycle facilities, do you then t
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ALDERSON REPORTING COMPANY, INC.
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begin to see equal protection problems arising that cannot be 2
sured by simply saying that we are studying the matter?
3 MR. BICKWIT:
It depends on whether there is a rational
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basis.
I am not sufficiently expert in the subject to know 5
whether you would find that.
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As to the fuel cycle and R
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The staff submitted supplemental materials 2I in regard to that question.
They said very recently that they 22 would make the same recommendation, notwithstanding the outcome i
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COMMISSIONER BRADFORD:
So, it is now the staff 2
position that everything, including --
3 MR. SHAPAR:
Unless it is changed since then.
I think
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MR. EVANS:
Yes.
I agree with what Mr. Shapar said.
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study that shows that a clearance with all of the types of Al 8
screening in that criteria would help assure that you decrease' d
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the likelihood of conspiracy.
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How would you get at that with g
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An L will only look at a criminal --
18 convicted.elony record, whereas a Q clearance will go beyond just f
19 criminal records and look at whether someone has stolen from a M
l 20 l previous employer and has been dismissed without ever actually 21 having been convicted of a crime.
22 COMMISSIONER BRADFORD:
But an L check then, an agency i
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25 MR. EVANS:
No, sir.
The only thing it does is tell l
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you whether he was convicted of a felony.
2 MR. BICKWIT:
That is not the way I read the rule.
That 3
may be the practice.
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I would like to amplify that, a little bit.
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Particularly as that information relates
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Can someone walk me through the N
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I apply for a job in A
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Somebody alleges that I was once, or still 18 am, an alcoholic or a homosexual or have relatives in eastern "5
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21 The employer then denies me a job.
What does he have 22 to tell me at the point at which we denies me the job?
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MR. BRADY:
Assuming the rule is promulgated as proposed, 24 i the person would have to complete the personnel security forms.
l 25 l Let's say he was an employee of a company, a fuel fabrication i
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facility.
He would complete the secutiry forms, both parts.
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information.
His employer would not see.
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COMMISSIONER BRADFORD:
The rule,' as proposed, you are dc 9
talking now about John's proposal for L clearances.
Supposing i
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It would be the same thing, but a broader
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THe information from OPM, they do A
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Yes, sir.
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CHAIRMAN AHEARNE:
This is between the division of i
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MR. BRADY:
That's right.
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COMMISSIONER BRADFORD:
Let me change my question to 2
get the employer out of it entirely, then, at least for the 3
moment.
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What happens?
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make a favorable finding as to your security clearance.
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21 Then, the board would make the determination.
If the 22 board makes a favorable determination, the person is_ granted a 1
23 ' clearance.
If the board does not make a favorable determination, 24l then it would go through a review process.
25l COMMISSIONER BRADFORD:
Does the person ever get a t
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l ALDERSON REPORTING COMPANY, INC.
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chance -- the person or an attorney respresenting them get a 2
chance to deal witt 'the specific. allegations made against them, or 3
are they dealing with the information as it is provided to them
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,Someone once said you are 0
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We would not reveal the identity of the d-q 9
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2 10 COMMISSIONER BRADFORD:
What would you reveal?
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We would reveal information that says there 3
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So, the person would, ultimately a
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They say, "I talked to you in confidence.
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That is a good-question.
A question I 20 ' guess legal would have to --
21 MR. SHAPAR:
I would take that into account in weighing 22 the validity of the charges that the guy refused to come forward i
and t3 23 and be examined under oath.
I would take that into account.
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As a matter of law, the person 25, does not have a right, I take it, to a clearance on that basis ALDERSON REPORTING COMPANY, INC.
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alone.
If the witness has refused to come in --
2 MR. SHAPAR:
-I would assume you would look at the whole 3
record.
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COMMISSIONER BRADFORD:
The person could still be 5
denied clearance?
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Yes, sir.
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COMMISSIONER KENNEDY:
Not necessarily on that basis.
Kl 8
MR. BRADY:
Not necessarily on that basis.
It would d
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be on the basis of the entire record.
10 COMMISSIONER BRADFORD:
Yes.
ll CHAIRMAN.AHEARNE:
How much different is this process 3
f 12 that you have described than the similar clearance process in 3
g 13 other agencies?
l 14 MR. BRADY:
Basically, it is the same as other agencies, 5
g 15 because we all operate under the same executive order.
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COMMISSIONER BRADFORD:
I take it it is also the same M
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Yes, sir.
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It is the same body of law.
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I was just -- so that I guess, Peter, 21 the question you have is more directed toward the clearance 22 system, per se, as it is to the specific --
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COMMISSIONER BRADFORD:
The question does come up as to 24 how sensible some of these criteria are in specific contexts.
25l The discussion about whether one really cares about whether some-ALDERSON REPORTING COMPANY INC.
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36 bfm37
.I body's spouse for example, has some of the undesirable character-2 istics, when you are talking aobut material access as distinguished 3
from information access.
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It is the search for information that d
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That is right.
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Peter, do you have additional --
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No.
Do we -- in fact, do we
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14 especially the item B criteria and explains why they would be 2
15 pertinent in this context of access to SNM.
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You do not have a specific --
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COMMISSIONER BRADFORD:
A criteria -- a point by point 18 discussion.
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Point by point discussion as to why these n
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I 2I CHAIRMAN AHEARNE:
As to Joe's proposal, since we would 22 be trying to minimize the differences between the clearance 23 ; approaches shown in the DOE system, that would be much less i
24 { relevant.
25 COMMISSIONER GILINSKY:
What is the proposal on the i
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To use the criteria -- I think the 3
staff proposal is to essentially have two clearances that track
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The DOE has a Q clearance and an L clear-s 5
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We would have a U clearance and an R clearance.
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I find enough of the criteria, g" 19 at least troublesome, that I would at least like to hear that 20 t discussion.
Obviously, at everybody's convenience.
I would not 21 want to close the meeting for a while, then reopen it just so we 22 could close the last few minutes of it.
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CHAIRMAN AHEARNE:
Do you have other -- do you have a i
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You mentioned --
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I mentioned two of them.
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other two depend on -- I have no. difficulty with the proposition 2
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Victor?
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You want to come to a decision Rg 7
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Yes.
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Is 'that where you are headed?
10 (Laughter.)
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This is labelled a discussion y
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13 COMMISSIONER GILINSKY:
I was not myself prepared to l
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CHAIRMAN AHEARNE:
Vic --
22 COMMISSIONER GILINSKY:
Some of the --
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COMMISSIONER HENDRIE:
Only for Fort S. Vrain in this 24 country, since it uses fully enriched fuel.
25 COMMISSIONER BRADFORD:
Why is the spent fuel pool a ALDERSON REPORTING COMPANY. INC.
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strategic quantity?. Obviously, it is --
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The concentration level is 3
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The Fort St. Vrain fuel --
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I think it is rather more the --
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We have done a study on it.
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Spent fuel --
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Then, the fully enriched stuff 18l 5
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I was just after the definitional difference.
2l COMMISSIONER HENDRIE:
I asked the staff what they would 22 do about Fort St. Vrain.
They said they -- the clearance require-23 l ments would apply at Fort St. Vrain just as they do at a fuel cycle i
24 ' facility on the same sort of basis; and that at such time as Fort 25 : St. Vrain gets its enrichment pool down under 20 percent, why
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Dick, where do you come out?
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COMMISSIONER KENNEDY:
I come out with'.the proposition h
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Allzight.
Len, we do want to go to i
h 10 your subject, but I would also like to take a vote on the position.
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11 Would you recommend -- we would then have to reopen it at the d
12 end of your discussion.
Does that cause you any real problem?
E=d 13 MR. BICKWIT:
No.
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14 CHAIRMAN AHEARNE:
Anybody else have a problem?
Eu 15 (No response.)
16 MR. BICKWIT:
Can we --
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I guess we should take a vote to N
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On what grounds?
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Exemption 10, relating to potential 3
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21 COMMISSIONER BRADFORD:
Do you need to vote?
I assume 22 not in any way, since to change the nature of the meeting --
23f MR. BICKWIT:
You can vote to close a portion of a 24 meeting.
25 !
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We would vote on putting out a rule.
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I propose we vote to approve that direction.
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I must say I would prefer to 20 have a specific proposal.
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21 not realize we were going to vote today.
Even if it was put off 22 for one day -- -
23 MR. BICKWIT:
You have some specific proposals before 24 ) you.
It sounds like you are going to recommend some modifications.
25 There are some written proposals before you.
The proposed rule i
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and the redraft of that-rule by the staff.
2 CHARIMAN AHEARNE:
What I would like to do now, though, 3
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All in favor of 5
that?
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6 (A chorus of ayes.)
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10 (Whereupon, at 11:13 a.m.,
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What I would propose we do is.to 3
vote to put out -- let me separate on the power reactors and go
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Is that d
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I would suggest that you do the latter.
5 13 MR. MONTGOMERY:
John Montgomery from Standards Develop-14 ment.
The ANSI standard that is mentioned in that board hearing 2
15 is drafted, but hastnot yet been balloted.
It is recognized that f
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That is not complete at this time.
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That work would have to be done before a new draft rule G
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5 20 MR. SHAPAR:
Also, I think you would want to articulate 21 in your decision the basis for it.
22 CRAIRMAN AHEARNE:
Joe, you would?
i 23 COMMISSIONER HENDRIE:
I would recommend that the vote 24 be on directing the staff to prepare such a draft rule with 25l appropriate discussion documents to go with it.
I would extend l
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what we are voting on to include a clear determination by the I
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Peter?
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That is fine with me.
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Which?
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The business of having the
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20 CHAIRMAN AHEARNE:
Fine.
I will go along with that.
21 COMMISSIONER KENNEDY:
Yes.
22 CHAIRMAN AHEARNE:
Victor?
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COMMISSIONER GILINSKY:
I was hoping to defer action i
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All rigLt.
25 ;
COMMISSIONER BRADFORD:
I would also be willing to i
ALDERSON REPORTING COMPANY. INC.
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defer action until tomorrow.
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I would rather go ahead now.
3 (Laughter.)-
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Tomorrow and tomorrow.
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COMMISSIONER HENDRIE:
I would rather go ahead now, just
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COMMISSIONER KENNEDY:
I would have gone last year.
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(Laughter.)
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CHAIRMAN AHEARNE:
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13, All in favor of that proposition say aye.
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m 14 (A chorus of ayes.)
2 15 COMMISSIONER GILINSKY:
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COMMISSIONER BRADFORD:
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As to the others --
20 CHAIRMAN AH'ARNE:
I think we have, at least, a clear 21 I position on that.
Three of us deferring.
Now, we then come to l
22 transportation and fuel facilities.
I would propose that we treat
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ria and the access.
i ALDERSON REPORTING COMPANY, INC.
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COMMISSIONER HENDRIE:
That is enclosure B to SECY 2
79-319.
3 CHAIRMAN AHEARNE:
I would vote for that.
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4 (A chorus of ayes.)
5 COMMISSICNER GILINSKY:
I would support a clearance 3
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COMMISSIONER BRADFORD:
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g 10 you put it, John, I would vote no.
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y 12 in this area that the General Counsel's office has advised against.
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n 20 I also would have liked a chance to consider -- I should 21l not say a chance -- I would like to consider the staff's alter-22 native proposal which I have not done up until now.
I 23 l CHAIRMAN AHEARNE:
Well, I guess I still, nevertheless, 24 would go ahead with the vote on puttingit out.
I think the i
25, General Counsel should certainly work with OPM to link these t
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things op.
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9 COMMISSIONER HENDRIE:
I don't have a problem with it.
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10 MR. BICKWIT:
We wluld probably want to take the staff 3l 11 up on some minor -- suggestions for minor modifications that the 5
y 12 staff has made.
Also, we think you ought to have an opinion in 5
13 support of this rule which we could draft.
l 14 l CHAIRMAN AHEARNE:
I would propose that we put out what U
2 15 the General Counsel drafts, unless the majority of the Commission j
16, has problems with the draft.
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COMMISSIONER GILINSKY:
Could I ask what schedule we are 22 on in plugging the gaps on research reactors?
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We are scheduled to come back at the end i
24 l of November of this year.
Basically, we have two major srudies 25, on-going.
One relates to --
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November?
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4 CHAIRMAN AHEARNE:
That is examining the exemptions?
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Secondly, how a sub-national 3
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9 COMMISSIONER GILINSKY:
Are there any restrictions with
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II MR. EVANS:
They are required to restrict access to I
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15 MR. EVANS:
More a need on the part of a student --
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Just being a student?
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Yes, sir.
A person needing access --
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18 MR. BURNETT:
Needing the material --
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COMMISSIONER GILINSKY:
Do you have to be a U.S.
a 20 ' citizen?
l 21 MR. EVANS:
No, sir, 22 CHAIRMAN AHEARNE:
That is UCLA, at the moment.
23 '
COMMISSIONER GILINSKY:
The 100 rem.
24 MR. EVANS:
We think there is a way to get around it, 25 as I was starting to say.
Campus safety equipment to get i
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2 CHAIRMAN AHEARME:
All right.
3 (Thereupon, at 12:01 p.m.,
the hearing in the above-C 4
entitled matter was adjourned.)
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ALDERSON REPORTING COMPANY, INC.
This is to certify that the attached proceedings before the NUCLEAR REGULATORY COMMISSION in the matter of:
DISCUSSION OF HEARING BOARD REPORT ON CLEARANCE RULE
--PUBLIC MEETING--
Date of Proceeding:
June 24, 1980 Docket Number:
Place of Proceeding:
Washington, D. C.
were held as herein appears, and that this is the original transcript thereof for the file of the Commission.
David S. Parker Official Reporter (Typed) y,
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OfbicialReporter(Signature)
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UNITE 3 STATis t
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NUCLEAR REGULATORY COMMIS310N
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P WASHINGTON, D. C. 20585 e
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T(u f, MEMORANDUM FOR:
Chairman Hendrie Commissioner Gilinsky Commissioner Kennedy Commissioner Bradford j
Commissioner Ahearne
.2 PROM:
J. & Leonard Bickwit, Jr., General Counsel
SUBJECT:
DISCUSSION PAPER TO ASSIST COMMISSION IN THE MATTER OF CLEARANCE RULE FOR SNM (SECY-79-319)
The pu. pose of this paper is to contribute to the Commission's decision process on the access clearance rule by (1) reviewing the setting for the decision, especially events preceding the hearing i
and subsequent to issuance of the Board's report; (2) presenting i
some observations on the state of the record and legal issues that we believe merit consideration, and (3) outlining the princi-pal options available to the Commission highlighting any further steps needed before a decision on those options.
This paper does not intend to substitute itself for the Board's Recort and Recc nmendations.
In particular, the Board's ReporE and Recommen-dations should be consulted for a summary of the record of the hearings.
I.
SETTING FOR THE DECISION Historv On October 7, 1976, Robert Mincgue, Director CSD, by SECY-76-508, sought Ccmmission approval to publish for public comment proposed amendments to the Commission's rules to establish a clearance program to be applied to individuals in the licensed nuclear industry where access is required to special nuclear material.1/
The decision issues were described as whether or not national 1/
While we begin our discussion at this point, it is clear frem the information and analysis within SECY-76-503, as well as from the reflection of differing views in the attachments to that paper, that the matter at issue already had at this date some history in the agency and its predecessor AEC.
Contact:
Marjorie Nordlinger, OGC 634-1465
2 security requires NRC to establish such a program and, if required, what is the proper scope of an effective program.2/
The Commis-sion's decision at this point must still confront these very issues.
Further, the issues are difficult to resolve in view of the essentially intangible nature of the competing considerations.
Indeed, the recommendation in SECY-76-508 was not unanimous.
In the coordination section of the paper the following information appears:
" ELD and PLA do not believe that the necessity of a special nuclear material access authorization program for light water reactor plants has been sufficiently demonstrated" 3/
and "OGC recommends that clearance at LWR's not be considered, that the statement of consideration be expanded and that emergency imp? e-mentation of the clearance program be considered" (SECY-76-508
- p. 11).
On March 7, 1977 the Commission by a vote of 3-0 approved publica-tion for 60 day public comment of a Commission proposal to estab-lish an access authorization pregram for access to or control over SNM that would be graded in scope of background investigation (National Agency Check (NAC) or full field investigation) and would employ the criteria of 10 CFR Part 10 as a basis to grant or deny clearances.
The proposal included people involved in '.ha operation 2/
The paper has enclosuras addressing alternatives and the need for and efficiency of paychological assessments.
Although nearly three years old, SECY-76-508 is still a useful document, and for that reason we attach it.
It is already a part of the record of the proceeding as an attachment to Staff's testimony.
3/
On January 18, 1977, Howard Shapar, ILD, replied to a question
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from Ccmmissioner Gilinsky as follows:
I have no problem, on either legal or policy, grounds, to a Government clearance program for licensed reactors.
Indeed I think more needs to be done in addressing the "empicyee trustworthiness" factor in the context of providing effective safeguards against sabotage at licensed reactors.
My problem stems from the fact that, in my opinion no convincing justification has thus far been developed to demonstrate that a Government-run clearance pregram is necessarily the best approach toward that cbjective.
To my knowledge, no systematic analysis of industry efforts to assure " employee trustworthiness" has been performed... The industrial experiences gained...
might sudgest the outlines of a pregram that could be adapted to nuclear reactors without the necessity of imposing a Government-run clearance pregram....
3 of both fuel cycle facilities and nuclear power reactors, and employ-ees of some non-licensees.
In taking this action, Chairman Rowden and Commissioner Kennedy favored publication of the proposed program in the form of a proposed rule.
Commissioner Gilinsky approved solicit-f ing of comments on the proposed access authorization program; however, the Secretary noted that Commissioner Gilinsky was not persuaded that the need for such a program for individuals at reactor sites had been sufficiently established to warrant its inclusion in a proposed rule.
(Memorandum from Chilk te Gossick,
Subject:
Staff Requirements, March 7, 1977.)
On March 17, 1977 the proposed regulations were published under the authority of 1611(2) of the Atomic Energy Act and public comment was invited (42 Fed. Reg. 14880).
Responding to the magnitude of ccmments as well as specific requests for a hearing, the ccmmission issued a notice of public hearing (42 Fed. Reg. 64703, Dec. 28, 1977).
The purpose of the hearing was to afford greater opper-tunity for public comment and for the expansion and substantiation of claims that the rule would have significant impact on industry operations.4/
The Hearine j
The Commission requested that the hearing address seven issues.
Briefly stated they are:
Issue 1 need for rule in each of licensed activities covered, Issue 2 advantages and disadvantages of alternative programs and alternative safeguards,
~
Issue 3 impact of rule en manpower required and costs during planned cutages at reactors, j
Issue 4 suitability and relevance of 10 CFR Part 10 derogatory information categories, Issue 5 relationship to 10 CFR 73.55 requirements -- extent rule meets threat of internal conspiracy, Issue 6 desirability of rule at university research reactors,
_ Issue 7 impact en transportation of SNM.
,4_/
See SECY-77-486, Sept. 12, 1977, recommending holding a modified legislative type hearing.
l l
~
4 The Commission requested that the Board conduct the hearing and prepara a record for its consideration.
The Board's Report (pp.
1-28) describes the hearing.
Pages 36-88 discuss issue by issue the positions taken in the hearing by the participants.
(Also
(
included in that section, pursuant to an August 31, 1978 request from the Commission, 5/ are the Board's recommendations on those issues.)
The Board's Recort The Board submitted its report on April 2,1979 including its recommendations (pp. 32-35, and 36-88) based, as provided by the Commission, on the standard that a clear preponderance of informa-tion favor any rule recommended.
A summary of those recommendations follows:
Issue 1 need for rule in each of licensed activities covered.
'l Need for proposed rule at nuclear power plants has not been 1
established.- Alternatives discussed in Issue 2 are feasible based on a lesser showing of need since they involve less significant social and economic costs.
No reco'mmendation regarding need at fuel cycle facilities.
Recommendations regarding transportation included with Issue 7.
Issue 2 advantages and disadvantages of alternative programs and alternative safeguards.
A legal determination should be made whether NRC is required by law to follow DOE's standards, and this determination should be included in the record.
Assuming Commission determines that employee screening is necessary and alternative programs that differ frem DOE's program are legally feasible, Board favors an industry-conducted program under 5/
In racemmending to the Ccmmission that it seek recommenda-tions from the Board, CGC stated:
"The Board has a thorough familiarity with the record, and can offer a unique perspec-tive on the major issues in the preceeding.
The record is i
sudficiently complex to require a substantial investment of resources on the part of the Ccmmission staff offices in 2
order for them to develop detailed knowledge of the issues.
The Hearing Board possesses that kind of kncwledge new."
Memorandum to Ccmmissioners frem James L. Kelley, Aug. 17, 1978.
1
'S 5
NRC-issued standards that would include a background investi-
/
gation, psychological scrsening and continued observation by supervisors.
Also included in the rule should be a r'equired appeal procedure, and requirements for protecting information and personnel privacy.
Issue 3 impact of rule on manpower required and costs during planned outages at reactors.
1 If the Commission adopts access authorization requirements for unescorted workers durin~g outages the requirement should be held to lower leve1 clearances.
Issue 4 suitability and relevance of 10 CFR Part' 10 derogatory information categories..
~
The Commission should not adopt the recommended I 10.11 derog-atory information criteria.
While aware that a Government-wide program is under way to re-evaluate and revi'se the i
derogatory information criteria, the Scard believes there is no justification for extending these admittedly unsatisfactory criteria to still another security pregram even as an interim measure.
If c*iteria relating to refusal to serve in the armed forces, $ 10.11(b)(6), having engaged in inf amous, immoral cr notoriously disgraceful conduct (8), being a homosexual or other sexual pervert (9) "are revised to account for the problems raised in the proceedings," 6/ the Scard does not oppose their use as interim criteria in subsequent secur-ity clearance pregrams.
Issue 5 relationship to 10 CFR 73.55 requirements -- extent rule meets threat of internal conspiracy.
Record insufficient to enable Board to reccmmend.
Issue 6 desirability of rule at university research reactors.
Supports Staff's assertion that no access authorization program would be required at non-power reactors possessing less than 4
formula quantities of SNM.
Issue 7 impact on transportation of SNM.
The Staff should further explore practical problems of enforcing compliance.
Scard agrees with general approach in Staff's final 6/
3 card's Report, p. 79.
Althcugh the matter is not entirely clear, the Board appears to be suggescing that these three criteria should be deleted.
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6
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- revision, i.e.,
that access authorization should be required for pilots.
Post Report Developments The Commission met on June 5,1979 to discuss SECY-79-319, OGC's May 7,1979 memorandum to the Commission presenting alternatives for Commission consideration of the Report of the Hearing Board and recommending issuance of an order providing for an on-the-record submission of Staff's legal analysis of whether NRC was required to follow DOE, an opportunity for Staff to respond to the Board's assertions. of deficiencies in Staff's support of the rule, and a subsequent opportunity for other participants to comment.
The Commission requested and has received legal analyses f cm ELD 1
and CGC on the authority question.
The analyses agreed in substance l
that the better legal view is that NRC is not bound to follow DOE in establishing standards for an access rule.
ELD's legal analysis i
was included in a July 16, 1979 memorandum titled " Staff Comments on the Access Hearing Board's Decision" 'which discussed in some l
detail Staff's belief that the Hearing Board wrongly indicated that Staff had some burden of proving the need for an access rulel7 l
and failed to recognize that the Commission had already postulated an " insider" safeguards threat.that could serve as a basis for the rule, aesponding to a Ccmmission request that Staff provide (1) an opinion of what alternative programs are available under existing j
authority "other than 1611(2) with an explanation of the difference 7/
While rais cacer cannot accommodate such a discussion, in another forum the Commission might consider better defining
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the role of the Staff in NRC rulemaking proceedings.
Some i
issues that suggest themselves are:
(1)
Should Staff be a participant in informal rulemaking proceedings?
j (2)
If Staff is a participant, should it exclusively repre-sent Commission positions or may it reflect dissenting views where they exist?
(3)
If Staff is a participant, what Commission-Staff contacts l
are desirable?
(4)
How may other participants be informed of Staff's role, so as to avoid feelings of unfairness?
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4 w-,
,---,,,_e..,,,n
7 I
between a reliability standard and a clearance program" and (2) a draft fuel cycle rule, Staff submitted a July 31, 1979 memorandum.
Enclosure A addressed alternative programs.
It stated that NRR, SD and NMSS do not believe that alta. natives which do not include
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come form of background investigation into associations would meet the current objectives.
Staff stated, and'we agree, that an inquiry into associational background would need to be based on the cuthority of 1611(2).
The memorandum also stated that NMSS, OSD and NRR, having been advised of ELD's legal view that NRC is not legally compelled to follow basic standards and procedures promulgated by DOE, nonethe-less believe that "a traditional government clearance program is the best alternative available at this date."
NMSS recommended adoption of a draft rule for fuel cycle facilities and transporta-tion involving formula quantities of SNM.
NMSS was silent on the subject of. power reactors.
NRR recommended that the rule as originally proposed be adopted with certain refinements, and as a second choice recommended for power reactors, excluding for the present all non-power reactors, an R access authorization based on a MAC investigation and the adoption of other requirements for unescorted access.
Any of the above alternatives was acceptable to OSD.
(Memorandum for Commissioners from E. K. Shapar, July 31, 1979, Enclosure A pp. 6-7.) provided the draft rule for fuel facilities.
The draft rule adopts full field investigation
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with 10 CFR Part 10 criteria.
Two participants in the rulemaking, KMC and Behavierdyne, have written the Chairman to complain that Staff has been permitted opportunity to comment after the record has been closed.
By way of relief, one requested a similar opportunity to comment; the ather requested the Commission not to consider Staff's comments.gj Related Considerations New requirements intended to meet the " insider threat" postulated for preparation and review of security plans for nuclear power reac-tors (e.g. pat-down searches) have been delayed in expectation of a Commission decision on the clearance rule.
If a clearance' rule were to be approved by the Commission, many believe some of the other measures would not be required.
However, if no clearance rule were to be approved, the matter of the " insider threat" would remain to be faced.
All the alternatives to some form of clearance rule will present substantial controversy.
For example, labor has voiced strong objection to the indignity of pat-down searches.
A two-man rule has the disadvantage of requiring more personnel than l
8/
See preceding footnote.
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8
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otherwise would be required to enter vital areas, and therefore significantly affects the worker population exposures to radiation.
The pat-down search requirement is scheduled uo go into effect on November 1.
Industry will require time to put it into effect.
b Industry is currently revising its ANSI 18.17 standard.
It is.
possible that a new standard would issue which the Commission could accept as assurance of trustworthiness and reliability.
Responding to vulnerabilities exhibited at Surry, Staff is currently preparing a paper concerning added procedures other than personnel clearances for access control to nuclear power plant vital areas.
An ongoing Staff study is also evaluating " methods or techniques for detecting or preventing insider threats, e.g.,
security clearance, psychological profiling."(Memorandum from S. Chilk for L. Gossick,
Subject:
Commission Action on SECY-78-567 "Ganeric Adversary Char-acteristics Study," October 31, 1978, p. 3).
II.
OGC OBSERVATIONS The' record of this rulemaking proceeding will, as a matter of law, support a variety.of options.9/
It is not our purpose to propose any particular option for adoption by the Ccmmission.
- Rather, our purposes here are to describe any weaknesses in the record insofar as they may limit the Ccmmission's options, to describe what we believe to be the major considerations in favor or against the principal options, and to describe a possible limitation in NRC's authority to adopt a clearance rule for LWRs.
The Record Except for certain of the derogatory information criteria tnat have been proposed (see discussion of Issue 4 of the Board's Report above), the record will support the clearance rule proposed by the Staff, or as proposed by the Staff but limited to fuel cycle facilities involving formula quantities of SNM.
The record is weak and confused regarding the derogatory information criteria.
The Scard, and prior to tha Hearing part of the Staff, urged that the criteria be revised; part of the Staff urged that the criteria not be revised by NRC but be kept uniform with other government clearance criteria.
The reasoning offered in support of the present criteria rested in substantial part on what is now conceded to be an invalid legal premise -- that NRC was legally compelled to adoot the DOE criteria.
There is some indication in the record that the proposed derogatory information criteria were 9/
While the Ccmmission requested the Board to present its recem-mandations based on a standard of " clear preponderance of
~
information" on the record, the standard for judicial review of the Ccmmission's decision is whether there is a rational basis for the decision.
Furthermore, while the Board's deter-mination of a preponderance is entitled to great weight, the Ccmmissien is not bound by it.
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9 reviewed and found generally suitable for a materials access
'r program.
However, the details of that review and the reasons for the general suitability conclusion are not available.
Because programs that affect constitutional rights should be the least restrictive possible to achieve the necessary result, it is
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oubject to serious question whether it would be constitutionally permissible to intrude into protected areas on the basis of a program no more narrowly drawn than " generally suitable".
The Bailure to provide reasoning in support of even this conclusion increases its frailty.
The only remaining argument in support of the present criteria is that there are substantial benefits to having all agencies of the Government using the same criteria, so that an individual is not denied access by one agency and granted access by another.
The problem with this argument is that it is not related to the merits of the criteria themselves.
If it is conceded for purposes of argument that the criteria are flawed, then it is not in our view a strong argument to assert that this is an acceptable state of affairs because all of the other agencies' criteria are similarly flawed.
Why should NRC not-take the lead here in proposing updated and more clearly relevant criteria?
In our view a Court would not likely uphold the contested criteria in the face of a datermined challenge based upon the present record.
We believe that before any access clearance rule is promulgated by the Commission, the Ccmmission should solicit the views of the Staff and subsequently of other, participants on the suitability of revised ' criteria for an access clearance program.
The record will also support variations on the access clearance rule that was proposed by the Staff.10/
The crincipal alterna-tive here is the one proposed by the Board -- an industry run program, including psychological testing, subject to NRC standards.
Princical Considerations Need for Acencv Rule A Commission decision on the basic question whether any clearance rule is needed will entail a judgment of the relative significance of ccmpeting considerations.
On the one hand, any rule that entails an investigation into a persen's behavior, character, associations, and loyalty will impinge on rights o' privacy and on rights of association and belief protected by the First Amendment.
This will be true (although to a somewhat lesser extent) even if the derogatory information criteria are carefully drafted and narrowly drawn.
These represent very significant,
(
although unquantifiable costs.
There are also, of course, the 10/
To the extent that any alternative relies on use of the deregatory criteria proposed by Staff, the record will require supplementation.
i
._____..,.m_.
_ _ _.... _ ~ _ _..
10 more quantifiable administrative costs to NRC and the industry of setting up and then administering a clearance program.
On the other i
hand, we believe that the insider safeguards threat postulated in the existing commission regulations should be taken as a given for the purposes of this proceeding.
There are obvious benefits asso-ciated with any rule that will reduce the safeguards risk from
(
insiders.
However, even assuming the existence of an insider threat, the benefits of a clearance rule designed to respond to it are difficult to gauge.
How successful would a clearance program be in weeding out individuals inclined.toward theft or sabotage?
The premise for a clearance rule - that clearances based on an investigation into a person's character, associations, loyalty and (if psychological assessments are included) behavior will significantly reduce the -safeguards risk f cm insiders --
cannot be conclusively demonstrated.
The Board in its Report was not helpful in " proving" or " disproving" this premise.
Given the
'unquantifiable nature of most o* the important competing consid-erations, the case for a rule mtst turn on value judgments of individual Commissioners as to the relative significance of those considerations.
Confinement of Rule to Fuel Cycle Facilities This issue-presents some special factors in addition to those described above.
First, while the costs are minimized if the rule is confined to fuel cycle facilities involving formula f
quantities of SNM, there remains the question whether there are so few peopl'a affected that the costs of establishing and admin-istering the program are justified.
Second, while application of a clearance rule to nuclear power reactors would for many symbolice a kind of conversion of the nuclear power industry frem a peaceful, civilian activity to a quasi-military one, this symbolic change will be avoided if the rule is confined to fuel cycle facilities.
Finally, although there is a serious legal question, described below, whether the Commission can apply a clearance rule to LWRs, if the rule is confined to fuel cycle facilities this legal issue is avoided.10a/
The Board's Alternative The Commission could, if it chose, adopt the 3 card's recem-mended alternative - an industry run program, including psycho-logical assessments, subject to NRC standards, although it is not at all clear that such a program would have a lesser impact on First Amendment rights or rights of privacy.
In our view, the l
principal differences here lie in the relative effectiveness and administrative costs of the Board's and the Staff's proposed programs.
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10a/ The first and final of these consideraticns would apply co a clearance, rule for research reactors possessing formula quantities of SNM, and a rule for transportation of formula quantities of SNM.
A clearance rule for such trans-portation also raises separate considerations of feasibility and practicality of enforcement.
11
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NRC Authority to Adoet a Rule As indicated above, there is a serious legal" question whether i
the clearance rule proposed by the Staff, or any alternative rule cntailing an investigation into persons' character, associations,
(-
cnd loyalty, can be applied to LWRs.
Under Schneider v. Smith, 390 U.S. 17 (1967), any program cntailing an innrusion into individuals' rights protected by the First Amendment -- rights'of association and. belief -- must be based on specific statutory authority.
Section 1611(2) was added to the Atomic Energy Act in 1974 by Pub. Law 93-377 to provide j
such specific statstory authority.
At the time the AEC consid' red e
3 that the general grant of authority in section 1611(2) te prescribe rules or orders to guard against loss or diversion of SNM would not meet the test of specificity called for by Schneider v.
Smith.
Section 1611(2), as amended by Pub. Law 93-377, provides es follows:
(In the performance of its functions the Commission is authorized to prescribe such regulations or orders as it may deem necessary] (2) to guard against the loss or diversion of any special nuclear material acquired by any person pursuant to section 53 or produced by any person in connection with any activity authorized pur-(
suant to this Act, to prevent any use or disposition thereof which the Ccmmission may determine to be inim-ical to the common defense and security, including regulations or orders designating activities, involving quantities of special nuclear material which in the opinion of the Commission are important to thw common defense and security, that may be conducted only by e
persons whose character, associatiens, and loyalty
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shall have been investigated under standards and specifications established by the Ccmmission and as to whom the Ccmmission shall have determined that per-mitting each such person to conduct the activity will not be inimical to the common defense and security.
The texr quoted above makes two things clear.
First, the authorized clearance program is to be part of an overall program "to guard against the loss or diversion of any special nuclear material."
There is no other way to explain the use of the word " including" in the opening language of paragraph (2).
Second, the clearance program is tied specifically only to the ccmmon defense and security.
There is no mention here, as there is in numerous other sections of the Act, of " health and safety of the public".
This failure to mention " health and safety of the public" is
12 easily explained.
Traditionally, loss or diversion of special nuclear material had been viewed not as a public health and safety matter, but as a common defense and security matter.
See Sienel v. AEC, 400 F.2d 778 (D.C. Cir. 1968).
Given the earlier language focusing exclusively on "less or diversion of any special nuclear material", it is not surprising that the drafters of Pub.
Law 93-377 made reference only to " common defense and security" in the later language of the paragraph.
A clearance program for LWRs thus presents two critical legal questions.
First, can such a program he based on the need to protect against loss or diversion of SNM in the interest of the common defense and security?
Second, if the answer to the first question is no, can section 1611(2) be construed more broadly so as to authorize a clearance program to protect against sabotage?
The answer-to the first question is clearly no.
Nowhere in the rulemaking record is there any indication that the proposed rule is designed to protect against loss or diversion of SNM at LWRs.
There was an effort made to relate reactor sabotage to the national defense.
While this arguably ties the proposed program to the common defense and security, it does not tie the proposed program to loss or diversion of SNM.
Thus the answer to the second question is critical to the legality of the rule as applied
(
to LWRs.
The only indication in the legislative history of section 1611(2) that the authorized clearance program may be used to protect against sabotage is in the testimony of Lester Rogers, j
AEC Director of Regulatory Standards, before the Joint Committee i
on Atcmic Energy:
e i
i The amendments to subsection 1611.(2) of the Atomic Energy Act would clarify and make explic,it the author-ity of the Commission to institute a clearance program for inquiry into the associations and backgrounds of I
persons who have access to or control over significant quantities of special nuclear material.
Such a program is important because of the ever increas-ing amounts of high strategic value special nuclear material associated with development and expansion of commercial nuclear energy.
For example, the domestic annual production of fissile plutonium by ecmmercial power reactors is expected to grow from the present level of about 1,000 kilograms per year to over 10,000 kilograms per year by 1980.
Moreover, as fissile plu-tonium can be used as fuel in ecmmercial reactors, plutonium could be employed to that end, resulting in
.o
.o 13 large amount of plutonium being processed into fuel elements each year.
With the advent of high tempera-ture gas cooled reactor technology, we can, as well, anticipate large material flows of highly enriched
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uranium and uranium-233.
Success of the liquid metal f ast breeder reactor and the light water breeder reactor programs would further add to the quantities of plutonium and uranium-233, respectively, to be utilized in the generation of electricity.
These materials - plutonium, highly enriched uranium, and uranium-233 -- are all materials that could be used in making nuclear weapons.
Moreover, plutonium and uranium-233 are highly radiotoxic.
This means that concomitant with the growth of commercial nuclear energy there will be an increase in the amount of materials which could be used in a manner inimical to the common defense and security, either by clandestine fabrication of an illicit nuclear weapon, by dispersal of radiotoxic plutonium or uranium-233, or by sabotage to a nuclear fuel plant or a power reactor in an effort to cause wide-spread contamination.
Thus, it is of the utmost bnpor-tance 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.
This testimony presents three problems.
First, the testimony can be read as assuming that formula quantities of SNM would be separ-ately possessed at power reactor sites.
This assumption would disqualify most present LWRs.
Second, Mr. Rogers's statement is not reflected in any other legislative materials.
There is no way to tell whether the Congress itself (as opposed to the AIC or the Joint Committee on Atomic Energy) had Mr. Regers's concept of the legislation in mind when Pub. Law 93-377 was enacted.
As a general rule, statements made at committee hearings are weak evidence of Congressional intent.
Finally, given the expressed intent of the legislation to provide specific statutory authori:a-tion for a clearance program, it would be inconsistent with that intent to read the language broadly so as to sanction a clearance program that is not specifically authorized by the statutory i
language.
Any such reading would also conflict with Schneider v.
Smith and U.S. v. Rebel, 389 U.S.
258 (1967), which may be read to hold that statutory language authorizing an intrusion into First Amendment rights must be narrowly construed.
This ' office has previously advised the commission of some of these problems of statutory construction.
See Memorandum for
,.4.,
14 Commissioner Gi1*insky from Peter L. Strauss dated Feb. 2, 1977 (attached).11/
The legal issues are not open and shut ones.
The testimony of Mr. Rogers does offer sema support for the proposition that, sabotage at LWRs was intended to be covered, and if the NRC should adopt this point of view the court would pay
(
some deference to this interpretation.
Nevertheless the better legal view is that the statute cannot be read this broadly.
III. OPTIONS OUTLINE Having described the setting for the clearance rule decision, we will outline the Commission's various options and will highlight further' steps that in cur view are required before the Commission may choose an option.
We hava categorized the options under three headings:
the basic type of rule to be adopted, the scope of the rule, and the criteria to be used under it.
Catecorv 1 - Tvre of Rule a.
No Rule To choose the No Rula Option requires no further steps in this particular rulemaking proceeding.
- However, were the Commission to make this choice, it would likely wish to proceed with other safeguards measures to meet the insider threat.
b.
The Procesed Rule (or any variation requiring a National Agency Check or full fielf' background investigation)
Ifethe ccmmission wishes further to consider adopting the originally proposed rule, it is OGC's view that op'portunity should be provided for other participants in the rulemaking proceeding cc submit their comments on Staff's July 18 and July 31 memoranda and on any other Staff submissions the Commission may request before making its decision.
While the proceeding is an informal rulemaking, considerations of fairness as well as recent judicial decisions strongly suggest that where the record is in effect reopened to admit new significant materials or additional argument, all parties should have an opportunity to comment.
This would be in addition to requesting the view of Staff and other participants on the deregatory information criteria.
11/
The cited memorandum reached the cenclusion S t Shile a clearance program at LWRs would have serious litigative risks, it could survive a ecurt challenge.
However, this memorandum did not focus on the issue of whether the program must be linked to loss or diversion of SNM.
c
- s sf.
15 Further consideration of the proposed rule might suggest further postponement of the effective date of the pat-down rule.
c.
Rule Based on the Board's Suqqestio3 (industry-run program including psychological testing)
The Commission could make a decision to move in this direction; however, a rule would have to be drafted and put out for comment before the Commission could adopt it.
At the least, in our view, comment should be solicited from participants before adoption.
The wiser course would be to publish a new rule for general comment.12/
While the rulemaking proceeding did address alternatives in a general sense, there has been no apper-tunity for the public to comment on the specifics of any alternative that represents a major departure from the proposed rule -- for example, the criteria and procedures that would be required for psychological assessments.
d.
Othes Other basic options, such as 'a government-run program with psychological testing, would also require further l
rule drafting and public comment.
Catacerv 2 -- Scoce of the Rule If an access rule is adopted,1dI a decision must be made on the extent to which it should apply to:
a.
Fuel Cvele Facilities -- While there appears to be less
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opposition to instituting some kind of a clearance
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program at fuel cycle facilities, to do so would still be a significant administrative undertaking.
In light of current expectations that a clearance program wi.11 be instituted for access to certain safeguards informa-tien at fuel facilities and in light of ongoing 00E clearances, CGC suggests that before approving a rule for fuel cycle facilities, the Commission ascertain that the program would cover enough personnel to be warranted. We recommend requesting Staff to provide updated' figures on the number of persons who would remain uncovered without a material access rule.
12/
One deficiency noted by the Board in the proceeding it conducted was the lack of views from organi:ed labor.
Board Report, p.
62.
13/
See footnote 10.
l
- s, 2-.
16 b.
Power Reactors -- The best legal argument in support of application of a clearance program to LWRs would r'esE-on Mr. Rogers's testimony before the Joint Committee, and a factual tie-in between reactor sabotage and the common defense and security.
The only such tie-in that has been proposed relates reactor sabotage to the. power needs of defense installations and other vital. Govern-mental facilities.
The rulemaking record on this tie-in is weak, and the Commission's legal position would be bolstered if this matter were given more detailed consideration.
c.
Research Reactors -- There appears to be general agreement ~~
to send the issue to Staff for its research reactor study (Memorandum for Commissioners from H. K. Shapar, July 31, 1979, Enclosure A, p. 7).
The Commission's decision should note this disposition.
d.
Transcortation of SNM -- The Commission would likely wish to request Staff to provide a response to the 3 card's concern regarding the practical problems of enforcing ccmpliance..
Catacerv 3 -- Criteria If the Ccmmission elects to proceed with any rule requiring a background investigation, it has the following options:
a.
Adocting the DOE (Government-wide) Criteria.
A move to Institute a new clearance program with crl:eria that are acknowledged as outmoded and irrelevant would, as we have indicated, be extremely vulnerable to legal challenge. As indicated suora (p. 9) the record requires supplemental information.
Views of participants should be solicited.
In our view a court would not likely uphold the contested criteria in the face of a deter-mined challenge.
b.
Adacting the DOE Criteria bv Eliminating
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Criteria Criticized bv ene Hearing Board.
This wc~uld require additional minor drafting before iaplementation'.
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No further public ccmment would likely be required.
The record would still be deficient in showing that the remaining criteria are the least restrictive criteria designed to screen out individuals likely to perpetrate a diversion, theft or sabotage.
Also, the Commission would need to consider the effectiveness of a clearance program with only the remaining criteria.
o; e ).
sa 17 c.
New Criteria.
This would require additional study and drafting.
If the criteria represent a whole~ sale departure from the proposed criteria, then public comment should also be solicited.
Also consideration would need to be
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given to awaiting the Government-wide study of criteria now under way.
Attachments:
- 1. SECY-76-308
- 2. Strauss memo 2/2/77 cc:
OPE CCA SECY l
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