ML20077Q318

Response Opposing NRC 830815 Motion for Reconsideration of ASLB 830511 Denial of NRC Motion for Summary Disposition of Contention Xx Re Radiological Sabotage.Pu/Be Sources Not Exempt from SNM Count.Certificate of Svc Encl

ML20077Q318
Person / Time
Site:	05000142
Issue date:	09/12/1983
From:	Bay J COMMITTEE TO BRIDGE THE GAP, NUCLEAR LAW CENTER
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-OL, NUDOCS 8309160063
Download: ML20077Q318 (9)

Text

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e 00CMETED US%M JOHN H. BAY 2 DOROTHY THOMPSON NUCLEAR LAW CENTER

'83 SD' 15 A11 :12

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3 6300 Wilshire Blvd., Suite 1200 Los Angeles, CA 90048 hhhh(c,5ECRtg"*'

z 4 Telephone: (415) 393-9234 BRANDi (213) 653-3973 5

Attorneys for Intervenor 6 (Contention XX)

COMMITTEE TO BRIDGE THE GAP 7

8 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 9 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 10 In the Matter of )

)

yi THE REGENTS OF THE UNIVERSITY ) Doc. No. 50-142 OL OF CALIFORNIA )

12 ) Proposed Renewal of Facility (UCLA Research Reactor) ) License No. R-71 13 I 14 CCMMITTEE TO BRIDGE THE GAP'S RESPONSE TO 15 NRC STAFF PETITION FOR RECONSIDERATION OF THE LICENSING BOARD'S MEMORANDUM AND ORDER 16 RULING ON STAFF'S MOTION FOR

SUMMARY

DISPOSITION 17 I.

18 INTRODUCTION 19 On July 26, 1982 in an attempt to expedite the hearing 20 process Atomic Safety and Licensing Board (" Board") requested that 21 Intervenor COMMITTEE TO BRIDGE THE GAP ("CBG") submit an initial response to the NRC Staff Motion for Summary Disposition of Con-23 tention XX, which response was to be limited to the issues of whether 24 Applicant must protect against radiological sabotage and whether 25 Applicant must meet the requirements of 10 C . F. R. 5 73.60. On 6

September 7,1982 CBG submitted the requested response. On May 11, 1983 the Board denied Staff's summary disposition motion. On August 28 8309160063 830912 2 PDR ADOCK 05000142 J G -

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1 15, 1983 the Staf f filed a motion for reconsideration. On this date, 2 over one year af ter the Board's initial request, CBG hereby submits 3 its reply to the motion for reconsideration in what it hopes will be 4 the last pleading on this issue.1/

5 In its May 11, 1983 Order, the Board ruled that the PuBe 6 sources possessed by Applicant were to be included in determining the 7 applicability of 10 C.F.R. S 73.'60 and that, pursuant to 10 C.F.R. 8 S 73.40(a), Applicant must protect against radiological sabotage.

9 The NRC Staff has requested reconsideration of these two rulings. As 10 will be shown below, the Board's previous ruling was correct and 11 should be upheld.

12 II.

13 PuBe SOURCES ARE NOT EXEMPT UNDER 10 C.F.R. S 73.60 14 In our September 7,1982 brief, CBG set forth and discussed at length the statutory provisions mandating the inclusion of PuBe sources under 10 C.F.R. S 73.60. In its May 11, 1983 Order, the Board provided its own extensive and well-researched interpretation of 10 C.F.R. S 73. 60 and 10 C.F.R. S 73.67 and the regulatory history of those sections. The conclusion in each instance was that PuBe 20 sources are exempt from 5 73.67 and not from S 73.60. Staff and 21 Applicant argue that this interpretation leads to untenable and 22 inconsistent results. In fact, this intrepretation is perfectly 23 consistent with and promotes the Commission's safeguards policy.

24 25 If As stated above, CBG has not been given an opportunity to conduct discovery 26 and respond to the factual portions of Staff's sunmary disposition motion.

Therefore, should Staff prevail on the instant notion for reconsideration, CBG 27 will request the opportunity to conduct discovery and so respond.

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I 10 C . F. R . S 73.67 provides physical protection require-2 ments for licensees possessing low and moderate quantities of SNM.

3 These licenses are by definition not targets for adversaries wishing 4 to divert SNM. Therefore, it is possible for the Commission to 5 exempt PuBe sources possessed by such licensees in order to achieve 6 other regulatory ends without endangering the common defense. On the 7 other hand, licensees possessing formula quantities of SNM, re-8 gardless of type, are potential diversion targets and must be 9 secured.

10 SECY-79-38 submitted to the Commission by the Office of 11 Standards Development to obtain Commission approval of certain 12 revisions to 10 C.F.R. Part 73 (attached to Staff Petition for 13 Reconsideration), provides a useful outline of the Commission's 14 policy regarding PuBe sources and confirms the foregoing explanation 15 of their inclusion in S 73.60 and not S 73.67. The policy underlying 16 the formula quantity security threshhold of 5000 grams SNM found in 17 5 73.60 is that it is a formula quantity that an adversary would need 18 to construct a nuclear explosive device. Thus, when a formula 19 quantity is present at one contiguous site, that site becomes a 20 target and increased security is required. The Staff notes this 21 policy albeit in the converse, on page 2 of SECY-79-38 where it 22 explains that PuBe sources should be exempted from S 73.67 because 23 an adversary would have to commit several acts of thef t in order to 24 obtain a formula quantity. Thus, from a security policy point of 25 view, small quantities of these PuBe sources do not, in and of 26 themselveu, pose an undue security risk.

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1 As is evident from pages 5 and 6 of SECY-79-38, may 2 licensees possess only PuBe sources or only PuBe sources and self--

3 protected fuel. The PuBe source exemption reduces the number of 4 licensees for SNM of low strategic significance from approximately 5 500 to only about 61. In other words, approximately 440 licensees 6 with PuBe sources possess no other non-exempt SNM. Thus, for these 7 licensees, the exemption removes them from NRC security regulations, 8 saves them hundreds of thousands of dollars each, and thereby 9 promotes the Commission's policy of reducing regulatory costs for 10 research and educational licensees. It is clear that these 440 11 licensees do not constitute potential targets for adversaries.

12 Therefore, the PuBe exemption for 70 C.F.R. S 73.67 licensees 13 relieved them from an unnecessary regulatory burden without com-14 promising health, safety and common defense. This is not the 15 situation at UCLA.

16 A PuBe source only ceases to become a security risk when 17 it is not found on a contiguous site with other PuBe sources or other

! 18 SNM such that the total SNM on site constitutes a formula quantity.

19 Thus, while there may be no need to protect single isolated PuBe 20 sources, facilities with formula quantites of SNM, whatever type, l

21 are potential targets and must be protected. UCLA, possesses at one 22 contiguous site at least 4920 grams U-235 and three PuBe sources, 240 l

l 23 grams SNM equivalent.2/ At UCLA, an adversary can obtain a formula

24 quantity of SNM on one site. Tnus, Applicant is subject to 10 C.F.R.

i l 25 ~2/

10 C.F.R. S 73.60 provides that "each non-power reactor licensee who, i pursuant to the requirement of Part 70 of this Chapter, possesses at any site or 26 contiguous sites subject to control by the licensee" [a fornula quantity of StM]

l nust comply with the requirements of this section. At the August 27,1979 meeting 27 held by the NRC Staff at Glen Ellyn, Illinois to discuss the "Inpact of the i

Safeguards Upgrade Rule on Nonpower Reactor Licensees," Mr. Donald Carlson atxl 28 Mr. Steve Ranos of the NBC Staff indicate that the Office of the Executive Legal Director has interpreted contiguous to mean anything within one mile. Meeting transcript p. 23:8-19 attached hereto as Exhibit A. All three PuBe sources possessed by Applicant are well within a mile of the reactor and, more accurately, within several hundred feet.

A

1 5 73.60, and increased security is called for, and it would be 2 inconsistent with rationale safeguards policy to interpret 10 C.F.R. 3 5 73.60 in any other manner.

4 III.

5 APPLICANT MUST PROTECT AGAINST SABOTAGE As the Board correctly ruled in its May 11, 1983 Order, 7

Applicant is required by the provisions of 10 C.F.R. S 73.40(a) to 8

protect against sabotage. Staff argues that S 73.67 provides the 9

sabotage protection requirements for this Applicant. In fact, S 10 73.67 does not provide any sabotage protection and does not purport to deal with sabotage.

13 The Statement of Consideration issued with 10 C.F.R. S 73.67 and SECY-79-38 and cited on page 11 and 12, respectively, of 15 Staf f's Petition make it clear that sabotage is outside the scope of 10 C.F.R. S 73.67.

The proposed amendments, that are the subject 17 of this paper are limited to consideration of theft of SNM and do not include sabotage pro-18 tection. (SECY-79-38 p. 5) 19 l To assert that these comments by the NRC Staff mean that 10 C.F.R. 20 S 73.67 provides the sabotage protection requirements for licensees 21 with less than formula quantity of SNM is sophistry.3/ The fact of 22 the matter is that in adopting 5 73.67 the Commission acted according i 23 24 l 3] It is even more difficult to square the statenents found in footnote 4, page 25 9 of Staff's petition with the Code of Federal Regulations. In footnote 4, Staff asserts that non-power reactors of higher power and greater fuel consumption are 26 abviculsy subject to more stringent regulations than low power research reactors. Staff sites no authority for this statement. CBG subnits there is 27 none. Nowhere in Part 73 is there a differentiation between non-power reactors based on operating power or fuel consurption.

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to Staff's recommendation to deal with theft and diversion first.

2 The Commission has not, to date, resolved the issue of specific 3 sabotage requirements for such licensees. Therefore, the Board's 4 citation to the Columbia proceeding (Trustees of Columbia Univer-5 sity , ALAB-3, 4 AEC 84 9 ( 1972 ) was appropriate in that there are no 6 specific sabotage provisions under which to implement the general 7 requirement to protect against" sabotage found in 10 C .F.R. S 8 73.40(a). The Board must determine on a site specific basis whether 9 Applicant has adequate security to meet the requirements of 10 C.F.R. 10 5 73.40(a). This determination must, in part, be based on a con-11 sideration of the potential health and safety consequences of an act 12 of sabotage at the facility. Contrary to the citation by Staff to 13 the abstract of a report that implies that sabotage at UCLA would not 14 endanger the public health and safety, CBG's expert has already 15 testified in response to Staff's and Applicant's summary disposition 16 motions that an act of sabotage could result in a release of 80% of 17 the fission product inventory causing radiation releases to the 18 public of millions of M. Declaration of Dr. Kaku T 83. At the 19 very least, a factual dispute exists as to the consequences of 20 sabotage and, thus, as to the adequacy of Applicant's sabotage 21 protection.

22 IV 23 CONCLUSION 24 Staff has shown no basis for reconsideration of the 25 Board's May 11,198 3 Order. PuBe sources are not exempt from the SNM 26 count for S 73.60. At facilities such as Applicant's, where a 27 formula quanity of SNM is found on one contiguous site, the PuBe 28 1 source as well as the unprotected fuel is a target for diversion.

2 10 C.F.R. S 73.40(a) requires protection against sab-3 otage. 10 C .F.R. S 73.67 provides specific requirements only for 4 protection against thef t and diversion and does not even purport to 5 cover sabotage. Thus, until such time as the Commission promulgates 6 specific requirements or exemptions, the Board must apply the 7 general requirements of 5 73.40(a) to this Applicant on a site 8 specific basis. Based on the foregoing, the NRC Staff Petition for 9 Reconsideration should be denied.

10 Respectfully submitted, 11 JOHN H. BAY DOROTHY H. THOMPSON 12 NUCLEAR LAW N R 13 By , 67 Attorneyg for Intervdflor 14 (Contention XX)

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23 I maintain them both under a trigger quantity, is it 2 NMSS's contention to bring the fuel together or keep k l

3 them apart in' separate licenses? If the fuel on our 4 site is brought together, then we'll go over trigger 5 and go into Category I. If it's kept under a reactor 1

6 license and an SUM license, then we'll stay out of i 4

7 Category I.

1 8 MR. CARLSON: Depends on if they're contiguous .

9 MR. RAMOS: I forget how far apart that is, 10 pag, h 11 MR. DORAN: 150 yards.

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12 MR. RAMOS: That's considered one site.

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13 MR. LIGHT: Ron Light, General Electric.

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15 MR. RAMOS: The only thing we've gotten out I

\-t 16 of our Office of Executive Legal Director so far is_a g I'

17 mile. Anything greater than a mile is not considered --

__ g 18 MR. LIGHT: Is'that in writing?

1 19 MR. RAMOS1_ -- a continguous s i t e _.

20 I think so, but I'm not positive. 4 21 MR. LIGHT: So then it's a determination and ,

22 not an interpretation?

23 MR. RAMOS: Yeah. i 24 MR. LIGHT: There. fore, it's not legal.

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25 MR. RAMOS: That's right. Not legal unless I t

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United States of America NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of Docket No. 50-142 OL THE REGENTS OF THE UNIVERSITY )

10F CALIFORNIA ) (Proposed Renewal of Facility (UCLA Research Reactor) ) License)

)

4 CERTIFICATE OF SERVICE I hereby certify that copies of the attached COMMITTEE TO BRIDGE THE GAP'S RESPONSE TO NRC STAFF PETITION FOR RECONSIDERATION OF THE LICENSING BOARD'S MEMORANDUM AND ORDER RULING ON STAFF'S MOTION FOR

SUMMARY

DISPOSITION in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, postage prepaid, addressed as indicated, on this date: September IZ, 1983 John H. Frye, III, Chairman Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Dr. Emmeth A. Luebke Administrative Judge Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Dr. Glen O. Bright Administrative Judge Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Chief, Docketing & Service "O" iur (3)

Office of the Secretary U.S. Nuclear Regulatory Com+tssn,..

Washington, D.C. 20555 Counsel ' for NRC Staf f U.S.. Nuclear Regulatory Commission Washington, D.C. 20555 Attention: Ms. Colleen P. Woodhead William H. Cormier Office of Administrative Vice Chancellor University of California 405 Hilgard Avenue Los Angeles, California 90024 n cy ,--w ,-,e -- .we , . , - , - - r , - - ------, , , . , - , - - - , - - ,-~~r ,,~,- -n- - +-

dhristine Helwick Glenn R. Woods Office of General Counsel 590 University Hall 2200 University Avenue Berkeley, CA 94720 Lin Naliboff Deputy City Attorney Office of the City Attorney City Hall 1685 Main Street Santa Monica, CA 90401 Committee to Bridge the Gap 1637 Butler Avenue, Suite 203 Los Angeles, California 90025 Daniel Hirsch P.O. Box 1186 Ben Lomond, CA 95005 Dorothy Thompson Nuclear Law Center 6300 Wilshire Blvd., Suite 1200 Los Angeles, CA 90048 Carale F. Kagan, Esg.

Atomic Safety and Licensing Board Pane U.S. Nuclear Regulatory Commission Was ington, D.C. 20555 U) d/ '

John H/j B'ay 8 l

Counsel for Intervenor COMMITTEE TO BRIDGE THE GAP 4

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