ML20141C860
| ML20141C860 | |
| Person / Time | |
|---|---|
| Site: | Erwin, 07000754, BWX Technologies, 07000734, 07000008, 07000364, 07000371, Framatome ANP Richland, 07000135, 07000033, 07000025, 07000820, 07001319, 07001143 |
| Issue date: | 01/21/1977 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | National Resources Defense Council |
| References | |
| NUDOCS 8601040021 | |
| Download: ML20141C860 (30) | |
Text
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. O O UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS: h Marcus A. Rowden, Chairman Victor Gilinsky Richard T. Kennedy
)
) Docket Nos.
)
In the Matter of ) 70-3 70-371
) 70-25 70-734 LICENSEES AUTHORIZED TO ) 72-27 70-754 POSSESS OR TRANSPORT STRATEGIC) 70-33 QUANTITIES OF SPECIAL NUCLEAR ) 70-135&##'70-820 70-1143 MATERIALS )70-143 70-1257
)70-364 70-1319
) et
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al.
)
MEMORANDUM AND ORDER On February 2, 1976, the Natural Resources Defense Council, Inc. ("NRDC") filed a petition requesting that the NRC either immediately implement emergency safeguards measures to protect strategic special nucicar material ("SSNM")
currently held or transported by NRC licensees or revoke forthwith the licenses and take immediate possession of the l
SSNM. The emergency safeguards measures included immediate l
dispatch of U.S. Marshals to licensee facilities, curtailment or complete suspension of licensee activities, revocation of outstanding SSNM licenses, and immediate recovery of SSNM.
0601040021 770121 PDff ADOCK 07000135 C PDR
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O The " Emergency Safeguards Petition" before the Com-mission addresses the adequacy of safeguards measures used by NRC licensees who are authorized under our regulations (10 CPR Parts 70 and 73) to possess or transport substantial 1/
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quantities of strategic special nuclear material. The term " safeguards" refers to the security measures undertaken by a licensee to protect SSNM from loss, theft, or diversion and to prevent sabotage of a licensee's facilities or '
activities.
By notice in the Federal Register dated February 4, 1976 (41 F.R. 5357), the Commission requested comments on the petition. The Commission referred the petition to the Director of NRC's Office of Nuclear Material Safety and Safeguards ("NMSS") under 10 CFR 5 2.206. After reviewing the matter and meeting with NRDC representatives, the Director denied the. request for emergency relief on March 22, 1976, concluding that the requested emergency action was *
" unnecessary" and failed "take into account the~ competing .
l interest of the licensees and the broader public interests l
l involved." In the Director's words, "the present safeguards l
l programs of the licensees in question are adequate to pro-vide a reasonable assurance of public health and safety and 1/
The term strategic special nuclear material ("SSNM")
includes uranium-235 (contained in uranium enriched to 20 percent or more in the U-235 irotope), uranium 233, or plutonium alone or in any combination in a quantity of 5,000 grams or more computed by the formula, grams =
(grams contained U-235) + 2.5 (grams U-233 + grams plutonium).
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are not inimical to the common defense and security." on April 8, 1976, petitioner filed a motion requesting action at the Commission level, in response to the emergency safe-guards petition. In its response, the NRC staff did not oppose the request for Commission action. However, the staff contended that our review should be a limited one 2/ -
under our Indian Point decision. In Indian Point, we stated our authority to review, under an abuse of discretion standard, a staff decision made under 10 CFR $ 2.206 not to issue an order to show cause.
Ten private companies (operating 13 facilities) l licensed by NRC currently possess SSNM, and four 1
transport companies hold NRC-approved transportation plans for shipments of SSNM. The licensees utilize the SSNM for a number of purposes, but most of the SSNM--
more than 90%--is high-enriched uranium held by certain licensees whose principal business is fabricating fuel for the Navy Nuclear Propulsion Program, an important national defense activity relating to the initial fueling and refueling of Navy nuclear submarines and surface ships. Other SSNM is used in various research and development programs of 2/
(Indian
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Consolidated Edison Company of Mew York, Inc.
Point, Units 1, 2, and 3) , 2 NRCI 173 (1975). See note 5 infra.
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private organizations and institutions and of governmental agencies. The SSNM which licensees possess or transport (predominantly high-enriched uranium) differs from the low-onriched uranium primarily utilized as fuel in commercial light water-cooled power reactors in that the former is capable of being used to fabricate a nuclear explosive
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device while the latter is not. SSNM licensees are there-fore required by NRC regulations to protect the SSNM against losa,, theft, or diversion (10 CPR parts 70 and 73). The potential consequences which could arise from the illicit use of SSNM are sufficiently great that licensees are required to employ detailed security measures to provido a high-degree of assurance against the threat of theft or diversion j of the SSNH. Safeguards programs of licensees typically _ _ _ _
have savoral dimensions including: (1) physical security measures, such as private guards, physical barriors, and intrusion alarms (e.g., 10 CFR $ 73. 50) ; (2) material containment programs providing for separate material access areas and vault storage of SSNM (e.g., 10 CFR I 73.60); and (3) material control and accounting proceduros such as
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3 Some liconsees also possess limited amounts of plutonium.
plutonium in toxic. Adverso consequences could follow from its dispersal in the atmosphere. This is not as great a concern with either low or high-enriched uranium.
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inventory and measuring systems designed to detect dis-crepancies in the amount of material on hand (e.g., 10 CFR 5 70.57).
Petitioner contended that the safeguards programs of the SSNM licensees do not sufficiently and adequately pro-tect SSNM from theft or diversion by, for example, an armed
' terrorist group intent on obtaining SSNM for its illicit use. In support of its position, petitioner relied princi-pally on internal memoranda and reports done by or for the 4/
NRC and its predecessor agency, the Atomic Energy Commission.-
Petitioner asserted that the common defense and security and the public health and safety require either that the licenscos' safeguards programs be immediately supplement'ed to provide protection against the maximum credible threat of theft--as, for example, by the immediate dispatch of federal marshals--
or, if this cannot expeditiously be done, that.the SSNM licenses be revoked forthwith and that possession immediately be taken of the SSNM.
4/
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The reports and memoranda include an early draft of the NRC Security Agency Study required by the Energy Reorgani-zation Act of 1974, an internal memorandum, dated January 19, 1976, written by Carl Builder, the Director of NRC's Division of Safeguards, MMSS (" Builder Memo-randum"), the Rosenbaum Special Safeguards Study done for the AEC and issued in April 1974 ("Rosenbaum Report"),
and a Mitre Corporation report to the NRC entitled "The Threat to Licensed Nuclear Facilities," done in September 1975.
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6
- 1. Preliminary Considerations.
At the outset, we need to address two aspects of the emergency petition each of which affects our consideration.
The first relates to our scope of review. The petition can be viewed as requesting both enforcement action against individual licenseco and special rulemaking on a generic level. Because of its request for enforcement action, the petition was initially referred to the staff under 10 CFR 5 2.206. The Director's decision not to instituto action under 10 CFR S 2.202 is reviewable by the Commission utiliz-l ing the standard of review octablished in consolidated Edison Company of Now York, Inc. (Indian Point, Units 1, 2, and 3), 2 NCRI 173 (1975)). Under this standard, detailed 5/
in a note below,- the Director's decision will not be disturbed unless it is clearly unwarranted or an abuse of discretion. The Indian Point review is essentipily a defer-ral to the staff's judgment on the facts relating to a potential enforcement action, in order to avoid premature
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Review of the Director's decision ombodios the following elements: (1) whether the statomont of reasons given permits rational understanding of tho basin for his decision; (2) whethor the Director has correctly understood governing law, regulations, and policy; (3) whether all nocosaary factors havo boon connidorod, and oxtraneous factors excluded, from tho ,
decision; (4) whether inquiry appropriato to the facts assorted has boon mado; and (5) whether the Director's decision in demonstrably untenable on the basin of all information available to him.
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commitment by the Commission on factual issues. While the Director's decision not to institute emergency action was rendered in tiarch 1976, we consider this to remain his decision today by virtue of his responsibility under our regulations to act on his own initiative. The Director has not initiated the emergency action requested by peti-tioner to date. Thus, the Indian Point issue is whether the Director's decision was an abuse of discretion, either when ho made it or in light of the current factn.
In this caso, contrary to petitioner's view utiliza-tion of the Indian Point utandard will not noticeably limit commission involvement in the insuca raised by the emergency safoguards petition. As we have earlier noted, a substantial part of the petition relatos to policy mattnrn which, ng is clear from Indian Point and otherwise, the Commission itnolf must decido. In any evont, we would rely heavily on the staff's judgment of factual matters, quito apart from the conuidorations in Indian Point. Of course, wo would examino the staff's judgment and ita basis with the appro-priato degroo of discrimination to satisfy ouroolvos of the
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judgment's validity. A searching inquiry is also considered 6/
essential to an Indian Point review.~
The second important aspect of the petition relates to the emergency nature of the relief sought. Much of the substance of the NRDC's position is of a policy nature which' l would warrant close Commission attention whether or not available'information compelled the precipitate action it sought. Nonetheless, petitioner's contentions must be r j weighed in the context of its request for emergency action.
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I t
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! The Indian Point standard of review is similar to the ,
review My that would be accorded the Director's decision a court. t
! 2 NRCI at 175. See Dunlop v. Bachowski, ;
) 421 U.S. 560, 568-576 (1975); citizens to Preserve i Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971).
d Using the Indian Point standard to review the Director's decision in this case is not an abdication of Commission
{ responsibilities as petitioner maintains. As we have l noted, the commission itself will decide questions of [
safeguards policy. The Indian Point standard is re- '
served for the factually oriented controversies in ;
which full Commission review at the very outset of a !
t proceeding risks premature commitment on factual dis- !
j putes which the Commission might later be called upon l to review. I 2/ !
Indeed, as we note later, the petitioner's contentions '
relate to policy matters being considered by the L Commission. For this reason and as we note infra, we i retain these aspects of petition for further review.
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The emergency action requested by petitioner is a drastic procedure which can radically and summarily affect the rights and interests of others, including licensees and those who depend on their activities. Our emergency powers nust be responsibly exercised. Cf. Nader v. Federal Aviation Administration, 440 F.2d 292, 294 (D.C. Cir. 1971). Avail-able information must demonstrate the need for emergency action and the insufficiency of less drastic measures. In the context of the request for emergency relief in this case, the available information must show that the continued activities of NRC licensees, under current safeguards pro-grams, are inimical to the common defense and security and constitute an unreasonable risk to the public health and
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safety. We are not required either by the Atomic Energy Act or by our regulations, to take the emergency action petitioner has requested whenever we receive information adverse to the integrity of existing nuclear power safety or safeguards systems. See Nader v. Nuclear Regulatory Commi'ssion, 513
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F.2d 1045, 1054-55 (D.C. Cir. 1975). Where the balance of available information demonstrates an undue risk, we of
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course take prompt remedial action. Actions have been taken i to improve our safeguards posture. But the facts have never called for the drastic relief which petitioner seeks. .And as we state in detail in the following paragraphs, we be-lieve that current available information also falls short of establishing a basis for the. emergency relief.
- 2. Review of the Director's Decision and the Staff's Site-Specific Actions.
e Petitioner has raised a number of safeguards issues calling for our consideration. Although there were safe-guards deficiencies pointed up by a series of staff site visits initiated prior to receipt of the petition, the Commission is of the view that the emergency remedies sought by petitioners were inappropriate in March 1976, when Mr.
Chapman denied the petition, and are equally inapprcpriato now. As we now discuss, what the staff review indicated as necessary to remedy the shortcoming revealed in fuel cycle facility safeguards was a systematic and integrated in-crease in safeguards protection implemented on an expedited,
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- 11 but not emergency, basis. Such an orderly enhancement of safeguards effectiveness has indeed been in progress since March, and we have recently directed implementation of addi-tional measures at a limited number of f acilities. Addi-tionally, the Commission has decided to conduct a rulemaking, the details of which will be publicized shortly to establish,
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through public pr'oceedings, a long-term regulatory framework for safeguarding strategic quantities of special nuclear material.
We believe the orderly approach adopted by the staff was and remains the correct one, in view of the compressed timetable under which needed safeguards improvements have been and are be!.ng implemented. In contrast,'the emergency mannuron proponed by petitioners would have required our taking action in the absence of the results of the staff's careful, though expeditious, review of the situation and could have had an unwarranted and severe impact on the operations of our licensees, most of whom are engaged in activities of importance to the national security.
l In January of last year and prior to this peti-tion, the Director of the NRC Of fice of Nuclear Material Safety and Safeguards initiated a special onsite review of
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all SSNM licensees. The purpose of the special review was to evaluate the safeguards measures of licensees against current NRC regulations and to analyze safeguards capa-bilities against a hypothetical internal threat of diver-sion of SSNM b? at least one insider -- an employee of the licensee -- occupying any position,'and a hypothetical external threat of theft presented by a determined violent attack of, at minimum, three well-armed,.well-trained attackers, who might possess inside knowledge or assist-9/
-ance.~ Two separate task groups of the NRC safeguards staff visited each licensee's facilities. The task groups consisted of six-to-eight staff personnel, and the visits ranged from two-to-four days' duration. One task group examined the licensee's physical security measures for the purpose of gauging the' timeliness,ilikelihood and ad'equacy of the licensee's response.to an external attack. The second task group reviewed the licensee's material control programs to eval'uate procedures controlling access to and 8/ The January review was directed at the fixed-facility fuel cycle licensees. Activities of companies author-ized to transport SSNM had been under special review
,s.ince October 1975, and are discussed infra. Much of the information generated by these staff reviews and follow-up activities is classified or proprietary. We have attempted in this memorandum and order to set forth the salient aspects of the information without, of course, compromising the classified nature of it.
But the factual underpinning of our conclusions in-cludes the classified information and briefings we have received from the staff.
E/ No specific threat levels are defined in our regulations.
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containment of SSNM. The reviews were completed in May.
While the fixed-facility licensees were found to have safe-guards programs which were generally in compliance with existing regulations, nearly all licensees were unable to
, defeat both hypothetical threats. The most frequently observed weaknesses were control of access to significant quantities of SSNM (both stored and in process), exit search procedures, and adequacy of response by onsite and offsite forces.
--10/
While the Director's decision on the NRDC emergency request preceded completion of the site reviews, we do not conclude that his inquiry into the facts asserted by petitioner was thereby, rendered incomplete. In_our .
view the factual issues raised by the petition center primarily on the nature of the threat to licensed facilities, generally, rather than on the implementation of safeguards measures at specific sites, which was the subject of the staff's site reviews. The Director properly focused his inquiry on the former, broader question. The Director's denial of the emergency re-lief requested amounted to a finding that modification of NRC's regulatory standards on an emergency basis was not called for. The Director's action was based in large measure on examination of the very information and reports cited by petitioner, who, as the Director pointed out in his response to the petition, brought forward no new factual material on this subject.
Nevertheless, implicit in the petition was a request for the actual implementation of emergency safeguards measures to protect the public against whatever threat was ultimately found to be appropriate. As we note in the text, each site visit was followed by the imposi-tion of new license conditions as appropriate, although in no case were the dramatic measures petitioner sought found to be required.
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O 14 The special review task groups reported that most weaknesses could be corrected by licensees instituting changed procedures, and the Director concluded that shutdown or curtailment of SSNM activities was not necessary. A few weaknesses were found which required structural changes, but these were susceptible to correction through compensatory procedural changes as a short-term solution. The NRC safe-guards staff suggested specific procedural alterations to each fixed-facility licensee at the conclusion of each site l
visit, and has continued to work closely with the licensees to increase safeguards capabilities and correct weaknesses found. A special survey, conducted by inspectors in the NRC Regional Offices during June, determined 'that all licensees had made significant improvements in their safeguards systems, although further upgrading measures still had to be taken.
Beginning in May, new license conditions were issued to indiv,idual SSNM licensees which, in effect, formally required.
each licensee to employ the safeguards measures that the review teams had determined were sufficient to defend against the hypothetical threats. During September and October, the I
staff conducted a second round of special onsite reviews to verify that the actions required by the new license condi-tions had been fully implem'ented. These onsite reviews were ,
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_o 15 similar, in personnel, time, and procedures, to the earlier initial staff review. Our staff's conclusions were that marked safeguards improvements had been made by all SSNM licensees, and that, in the judgment of the site-review teams, all facilities visited have the capability of meet-ing the postulated threat. However, as to several facilities, the site reviews have suggested that the level.of assurance underlying that judgment was not as great as for the remain-ing facilities. The Commission considers it prudent -- in order to maintain a reasonably assured margin of safeguards at all facilities - to undertake additional measures at these facilities to increase the level of assurance that they are protected against the postulated threat. Based on a generic
- staff analysis that shows a strong relationship between on-site guard strength and the level of safeguards protection afforded at SSNM facilities, the Commission has decided to require the facilities to increase the number of guards on site or to implement alternative measures which are equally effective within the next two months.--11/~
11./ All SSNM facilities and transportation activities will be the object of continued NRC review, inspection, and evaluation. In this regard, the Commission has asked the staff to develop a plan for the comprehensive assess-ment of all SSNM facilities, to be used in the context of current safeguards as well as upgraded safeguards l
measures which are to be the subject of a Commission rulemaking described later in this document. The staff's expertise in using safeguards evaluation techniques is' growing, and future site visits will likely include the use of additional evaluation strategies.
.- O O 16 As regards SSNM transportation activities, on October 1, 1976, ERDA assumed responsibility for shipment of all Govern-ment-owned SSNM -- over 90% of the total SSNM road shipments.
In a separate series of reviews, the NRC staff evaluated the vulnerability of road shipments of SSNM to attack by at least one insider, or an external group of a minimum of three attackers with military training and skills, at least one of whom could be an insider. As to the private shipments which are still subject to NRC regulation -- about 10-30 shipments annually -- the NRC staff reviews have led to improvements in commerical transportation planning and scheduling. New license conditions responding to other problems identified by the staff vulnerability studies were implemented in May 1976. The license conditions required increased escort guards, training and instruction of shipment guards and drivers, and installation of citizen band radios for ship-ment and escort vehic_les. The staff is conducting addi-tional reviews, and further upgrading measures remain under consideration.
As we next address, we believe the NRC policy of orderly strengthening of safeguards which the staff is implementing and enforcing provides adequate protection to the public.
This policy includes planned agency public proceedings directed at requiring additional upgrading actions by SSNM licensees. In this context, we are satisfied with the
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l staff's conclusions that licensees have safeguards programs which are adequate for the immediate term and that the emergency safeguards sought by NRDC are unwarranted. Our conclusion to initiate rulemaking directed at further up-grading of existing safeguards discussed below, is founded on considerations of prudence. As we have described above, the* staff's conclusions rest on extensive onsite reviews of and work with individual licensees. We do not construe the staff's efforts as a statement that the safeguards measures of NRC licensees are insufficient. Rather, we view the activities as an important ingredient to enhance a safe-guards posture which we believe is adequate to protect during this interim period while the upgrading measures discussed below are implemented. ,Because of 'the staff's
'past and continuing safeguards efforts, we believe that the emergency measures which petitioner requests are not neces-sary and that the continued activities of SSNM licensees are not inimical to the common defense and security.and do not constitute an unreasonable risk to the public health and safety. Based upon the information presently available, we cannot conclude that the Director's decision not to invoke the emergency action petitioner requests was an abuse of discretion. --12/
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Analyzing the Director's March 22 decision under the Indian Point standards (see footnote 5, supra), we con-sider the letter-decision to be understandable and to rationally explain the basis for the decision. The
[ Continued on following page]
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- 3. Consideration of Safeguards Policy Matters. ,
Specific threat levels are not defined in NRC regula-tions. However, the ef fect of the staff's recent activities with individual SSNM licensees has been to require safe-guards systems that will protect against the postulated threat of diversion of SSNM by at least one insider occupying any position, or by, at minimum, three well-armed, well-trained outside attackers, who might possess inside knowledge or assistance. This current NRC safeguards posture rests on judgment and experience. It is supported by (1) analysis od and to the extent possible extrapolation from historical evidence on the size and character of groups involved in incidents of terrorism and other antisocial behavior; (2) communications and work with other federal agencies having special knowledge and expertise in this area; and (3) review of our records of the types of actual and threatened violence in the commercial nuclear industry. No NRC-licensed nuclear facility or activity has ever been subjected to armed attack, 12/ [ Continued from preceding page]
Director understood and executed then-current safeguards policy and his obligations under the Atomic Energy Act and NRC regulations. No essential factor was excluded from consideration or extraneous factor included. An appropriate factual inquiry was made (see footnote 10 supra), and the decision was, and remains, not demon-strably untenable in light'of the available information.
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o 19 and we have no evidence suggesting that an'y such attack is likely. Nonetheless, the danger of attack cannot be wholly discounted. Given our impending proposals for safeguards upgrading, we believe the current level of safeguards reason-ably assures that continued SSNM activities of NRC licensees are not inimical to the common defense and security and do not constitute an unreasonable risk to the public health and safety.
The principal safeguards policy issue raised by the NRDC is whether,SSNM licensees should"be required imme-diately to employ safeguards measures which would protect against attacks by groups substantially larger than the threat postulated in the staff's special safeguards review.
The documents upon which petitioner relies are several ,
reports and memoranda generated by or for the NRC and the 13/
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AEC over the last two years. The authors of some of these' documents judge larger groups to be a possible risk as 13/
Representative of the internal reports and memoranda--
and also the documents upon which petitioner principally relies in seeking emergency action--are the Rosenbaum Report, and the Builder Memorandum. See note 4 supra.
The former hypothesizes a threat of 15 highly trained persons, three of whom might be insiders; the latter assumes, for purposes of future safeguards consideration, an internal and external threat of two and six persons respectively (noting a range of expert opinion from one and three to four and 12) and hypothesizes a minimum leve,1 of one insider and three outsiders.
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o o 20 petitioner contends. However, neither these judgments nor the factual context in which they must be evaluated suggest that the emergency action petitioner requests is either necessary or appropriate. Petitioner has not pro-vided information demonstrating an imminent threat to SSNM licensees -- although such risks cannot be wholly dis-counted -- and in this regard it is noteworthy that the reports and memoranda referenced by petitioner do not recommend the kind of precipitate action which petitioner f seeks. -14/
In the safeguards context, the specifications of the threat against which safeguards should protect -- its size and characteristics -- cannot be precisely quantified. In
'this respect, threat analysis appears to be an example of regulatory action that would greatly benefit, before implemen-tation, from a detailed and open review, including a public examination of the costs and benefits attendant to in-creasing safeguards measures to meet varying levels of 14/
The Builder Memorandum, for example, did not suggest that additional safeguards must be implemented on an
> emergency basis. Rather, the memorandum recommended a review of existing facilities while awaiting further judgments about what may be a prudent design threat level. This, of course, has been done by the staff.
o-O 21 threat. Some historical perspective exists for threat #
analysis, but it appears to be of limited value. Much of the safeguards question deals in the complexities and unpredictable nature of human character. Thus, the possible analogy of safeguards planning and design and of the techni-cal health and safety planning and design undertaken inci-dent to the licensing of commercial nuclear facilities is of uncertain scope or validity. --15/ At present we are not convinced that the empirical or technical means exist to assess the threat with such precision as to establish as mandatory one specific level of safeguards and no higher or lower level. Further examination of safeguards policy may reveal that the appropriate level of safeguards protection ;
l will depend on the public acceptability of the measures employed and on the cost-benefit balance of increasing 16/
safeguards protection. In this regard, we cannot discount that the ultimate decision to require additiona.1 siTeguards may involve substantial amounts of initial and 15/ See "A Report to the U.S. Nuclear Regulatory Commission on a Conceptual Approach to Safeguards," p. 21 (October 31, 1975). -
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Id. at 16.
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continuing expenditures. --17/ Before requiring this action, we should be reasonably certain that the expenditures will provide a publicly desired benefit in safeguards protection.
Additional safeguards protection need not be implemented on an emergency basis un'7ss necessitated by the facts. Available information does not provide a factual basis for emergency implementation. Thus, in ru. , sing petitioner's requests for (__ ,
emergency action, we do not put a price on basic public safety. Rather, we simply recognize that we must determine that the common defense and security and the public health and safety are advanced by proposed safeguards improvements.
All of this discussion convinces us that the issues ad-dressed by petitioner are of important concern but can and should be resolved in contexts other than that of a request for immediate, emergency action.
We do not perceive an actual threat to our licensees, although such may not be wholly discounted. As we have said, no NRC licensee has ever been the target of an armed
--17/ On this point, we note that some of the SSNM licensecs are engaged in important national defense activities.
Thus, there may not be the option of ultimate shutdown of these SSNM licensees even though the publicly desired level of safeguards might be greater and more expensive than the present level. Petitioners recognize this, albeit in the context of short-term, emergency relief.
D n O attack, and available information does not indicate that an ,
attack is probable. However, prudence dictates that our safeguards policy be subject to close and continuing NRC review.
Thus, we have decided to conduct a public rulemaking to consider upgraded interim safeguards requirements and proposed longer-term upgrading actions. The specific upgrading actions remain to be defined in the proposed rule and in developing these actions the Commission will consult and coordinate with the Energy Research and Development Administration and other federal agencies having special knowledge and expertise in this area.--18/ For the reasons already stated, we have concluded that continuing activities of SSNM licensees are neither inimical to the common defense and security nor present an unreasonable risk to the public health and safety.
The rulemaking is currently planned for the next few months. This, proceeding is intended as a pubIlic review of generic safeguards policy for SSNM licensees, and transporta-
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In this regard, we note that ERDA has recently initiated upgrading actions at its facilities and plans additional actions in Fiscal Year 1978. Over 90% of the SSNM pos-sessed by NRC licensees is government-owned and subject to ERDA possession and safeguards at one point or another. Our safeguards concerns relate, of course, to those periods when SSNM is in the hands of our licensees.
1 . _ _ _ __ _ _ _ _ _ _ _ _ _ _ _____ _ _ _ _ _ _ _ _ _ _ _ _ - _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ _.
O O 24 tion activities and will consider requirements for upgraded safeguards programs in both the near and long term. At the Commission's request, the staff is formulating, for con-sideration in the rulemaking, recommendations for additional steps that might be taken to upgrade safeguards to protect against higher levels of threat. In formulating its recom-mendations, the staff is'considering, among other materials, the report from a joint NRC-ERDA Task Force which evaluated safeguards of the fixed-facility licensees involved in this proceeding for the purpose.of formulating a safeguards action plan for NRC licensees and government-owned SSNM facilities. --19/ The Task Force recommended employing ad-ditional safeguards measures to counter the hypothetical threats of internal conspiracies among licensee employees and determined violent assaults which would be more severe than those postulated in evaluating the adequacy of 1E/ The Task Force was directed by Carl H. Builder, then Director of NRC's Division of Safeguards. Its report --
sometimes referred to as the " Builder Task Force Report" -- contains Restricted Data, and is classified
" Confidential," under the Atomic Energy Act of 1954.
42 U.S.C. 5 2014y. Like previous reports on this subject, the report based its recommendation to increase safe-guards on prudence, rather than a perception of the imminence of threats to the nuclear industry. An un-classified version of the report is planned for release shortly.
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4 current safeguards. The Commission has approved this objective as an appropriate proposal for purposes of the 2_g/ ,,
planned public review. The rulemaking proposal will also _
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g include interim safeguards actions to be taken over a shorter I
span of time. Proposed interim actions include: (1) increas-
[
ing the capability of weapons supplied to guards; (2) improv-i ing guard training; (3) requiring SSNM licensees to employ o
r F
additional safeguards measures, as the staff determines ;
(
necessary at each facility or for each transport company, to t _:
a defend against an external threat having the capability of a
? 21/ 2 determined assault more severe than that currently postulated; --
h
}
2p/ While we are committed to proposing for public review l an upgrade of safeguards capabilities at SSNM facili- _
ties, this is not to say that the Commission will neces- ,
- sarily adopt the proposed upgrade measures as its ultimate course of action. The Commission remains -
free, at the close of the public proceeding, to adopt
[ the course it considers as most prudent to maintain a
- margin of safeguards protection, taking into considera-tion all ingredients of responsible regulatory action, _
including the education it undergoes as a result of the ,
p' ,
public process. While we have no evidence of actual threats, we cannot wholly discount that SSNM licensees'
- will be the object of assaults more severe than those p currently postulated or of internal conspiracies among employees. _
21/ Depending on the staff's evaluation of what is prefer-able at each facility, these additional safeguards _
measures would include additional guards at some facilities, installation of undefeatable offsite '-
r communications systems, improved guard deployment e and defensive positions, and hardened facility alarm _
stations.
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26 (4) a security clearance program for employees with access to SSNM; --22/and (5) other measures which may, for the interim, be utilized to increase protection against internal threats of theft or diversion of SSNM. ,
The Commission believes that the contemplated safeguards rulemaking proceeding presents a satisfactory framework for near- and long-term safeguards decisionmaking. We see no reason to short-circuit the usual rulemaking procedures to address safeguards policy matters. --23/
One final matter merits comment. Petitioner has con-tended that SSNM licensees must employ safeguards measures l designed to combat "the maximum credible , threat of thef t or l
diversion." It is maintained that the concept finds sup-port, by analogy, in the health and safety requirements 22/
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Security clearances are already required by ERDA for employees of SSNM licensees that are engaged in activi-ties under ERDA contract. This covers 90% of the SSNM in facilities licensed by the NRC.
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The Commission's analysis of safeguards issues in the context of the wide-scale use of mixed-oxide fuels in commercial light water-cooled power reactors ("GESMO")
may also offer a forum for discussion of longer-term safeguards matters. GESMO does not apply to existing SSNM licensees, but could serve to focus long-term generic safeguards issues and develop future approaches that would be relevant to existing SSNM licensees.
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27 incident to the licensing of commercial nuclear facilities --
an analogy which, as we have previously indicated, is of uncertain validity. The maximum credible threat concept is not now a part of NRC safeguards policy. Without intend-ing to prejudge the utility of the concept, which will likely be evaluated in planned agency proceedings and studies, the present state of safeguards information does not render the concept obviously useful. For example, there does not now appear to be sufficient sophistication in safeguards analysis to establish conclusively the precise nature and
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level of threats which may be posed to nuclear facilities. --
Current safeguards. policy relies on extrapolation from historical evidence and communications with law enforcement authorities and with other Federal agencies having intelligence-gathering responsibilities or experience and expertise in protecting materials similar to SSNM. Yet, as we have noted earlier, the empirical basis for nuclear safeguards threat 24
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For example, petitioner asserts that existing information places the maximum credible threat at from 12-15 armed outsiders or 3-4 industry employees in collusion, with the chance that future review and assessment may reveal a significantly larger threat. We consider these numbers to be essentially matters of judgments. Such judgments, together with the other available information, have been taken into account by the Commission in arriving at its safeguards decisions.
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28 assessment is not well developed. This, of course, is not to say that an analytical framework for threat analysis cannot be developed and would not be important in the resolution of safeguards policy issues. In this regard, we again note that the parameters appear to us to be more social than technical. The staff has underway several studies which address the analytical basis for a design basis threat. Additionally, consideration of this safeguards matter may be a part of the planned NRC public proceedings.
Thus, while future information and developments may provide clarity, we are not now convinced that the maximum credible '
threat concept is a helpful one in safeguards planning.
- 4. Disposition of the Petition On the basis of the above, we conclude that existing safeguards programs, including the extensive and continuing activities of the staff and the SSNM licensees along with the planned safeguards policy activities, are adequate to provide a reasonable assurance that the current SSNM activi-ties of NRC licensees are not inimical to the common defense and security, and do not constitute an unreasonable risk to the public health and safety. We further conclude that the Director's decision not to invoke the emergency action
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29 requested by petitioner was not an abuse of discretion. We accordingly deny petitioner's request for the immediate dispatch of federal guards, or similar emergency measures, or the revocation of SSNM licenses. As to the safeguards po.'. icy issues raised by the emergency petition -- apart from the requested emergency relief -- we retain these to be incorporated into ongoing and contemplated reviews and pro-ceedings, and shall invite NRDC participation at appropriate stages in these proceedings. The staff will be instructed to notify petitioner of agency proceedings,.which involve public participation, on agency proposals relating to the safeguards measures to be used by SSNM licensees and in re-lated transportation activities. Nothing contained herein should be construed as precluding petitioner from renewing its request for emergency action upon a showing of new w
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9 O o 30 information which demonstrates the need for emergency
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relief.
It is so ORDERED.
By the Commission.
/ se u F M AMUEL J ..THILK N Secretary of'the Commissidn Dated at Washington, D.C.
this 21st day of January, 1977.
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Petitioner has filed a motion entitled " Motion to Ensure Compilation of the Record." The motion reflects petitioner's concern that all materials relevant to the contentions made in the Emergency Safeguards Petition be available and before the Commission for review. We agree with this concern and note, that the Commission is free to consider any materials it believes relevant including, but not limited to, the documents enumerated in petitioner's motion. This foilows from the fact that our consideration of the Emergency Safeguards Petition is not a formal agency proceeding conducted on the record. Thus, the Commission is free to rely on its expertise in the matter and to considor any and all available information whether or not cited by NRDC or the staff, and whether or not it has been or could be made publicly available. The information relevant to and considered in this case includes staff reports and documents on the special onsite reviews (some of which are classified Restricted Data or National Security Information), information and reports provided to the Commission in connection with its continuing inter-changes with the Congress and other Executive branch agencies, safeguards studies done by or for the Commis-sion (some of which are classified Restricted Data or National Security Information), and other information, documents and reports furnished to the Commission in the' course of performing its daily business affairs.