ML20235Z328

Discusses Impact of Proposed Safeguards Upgrade Rule on Nonpower Reactors.Protection Requirements of Current & Proposed Rules Set Forth.Steps Taken to Resolve Concerns Listed.Rn Smith Repts of Interview Attached

ML20235Z328
Person / Time
Site:	05000142
Issue date:	05/31/1979
From:	John Miller NRC
To:	Stello V NRC
Shared Package
ML20235Z143	List: IA-84-454, Recommends Commission Affirm SECY-83-500 to Revise 10CFR73.40(a),general Physical Protection Requirement ML20235Z140 ML20235Z266 ML20235Z287 ML20235Z305 ML20235Z328 ML20235Z366 ML20235Z369 ML20244C916
References
FOIA-84-454, FOIA-88-A-50 NUDOCS 8903150335
Download: ML20235Z328 (16)

Text

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SUBJECT:

IMPACT OF PROPOSED SAFEGUARDS "UPGUDE" RULE 0:1 :10N-F0WER REACE Since late January,1979 we have-visited twenty-two non-cower reactor licensee facilities (28 reactors) to assess their capability to meet the requirements of the proposed Category II/III Rule. The number of reactors visited represents i a broad spectrum of the different type of non-power reactors that fall under the ; proposed rules. 3 I initially informed you that hiicensees would be affected' by the " Upgrade' rule because they possessed formula quantities of unirraciated special nuclear ma te rial. Subsequently three of the six have found that they can reduce their inventory to less than formula quantities and still opertte effectively. Of the remaining three, one has stated it can reduce its inventory through the use of reflectors and another has proposed to store their unirradiated fuel at several different sites and provide adecuate physical protection. The last one of the above 3 facilities has indicated that they will be unable to provide the physical protection features of the " Upgrade" rule because of the cost factors involved and this licensee apparently cannot fur-her reduce his inventor, This identifies what we once believed would be the only imcact of the '*Uperade rule on non-porter reactors; however, as a result of a cc-tineir.; examhation o# the curren; and proposed safeguards rules, we have ec. (den-i#f ed a sic,ifica- .. :e - (22 'acilities. 27 rea:::rs ) that c., k possi:

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___ _ __ _7 , 'l ~ current and preposec regulations do not clearly identify recuire.ents for ncn-power reactors. The following sets forth the protect $43 requirements of the current anc preposed rules. Part 73.50 physical protection requirements do not apply to material located in the reactor core or material contained in irradiated fuel elements recoved from the reactor core without regard to radiation levels. Only unirradiat r.aterial is accounted for in Determining the physical protection requirements to be applied to a facility. Consequently, the. twenty-three licensees identified are not currently required to provide the physical protection associated with possession of formula quantities of special nuclear material. This exemotion will be eliminated with the publication of the "Uporade" rule. The only other solution would be to irradiate and maintain the material to a self-protecting 1evel. As we now see the situation the fuel elements associated with these j reactors cannet attain or sustain a total external radiation dose rate in e> cess of 100 rems per hour at three feet; therefore,these non-power reactors will come under the " Upgrade" rule. The only immediately foreskable solution is to rencve non-power reactors from the proposed safeguards rules and concurrently prepare a separate physical protection rule for non-power reactors. Clearly, 10 CFF. 73.55 has provided us with an insight on how imocr' tant it is to have a viable rule designed to protect a specific type facility. I believe we ( sheuld consider it as a lesson learned: Ee:t.se of t,e above, we are aking steps t'o: 1. Infor. the Cor.issien of our concerns, partic-2 r.e fact that ine-e .1 '. i e. ore inen 20 nen-co.ter reac crs af#ec

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r.,,- o. ' '. L '. ;,. " 2. Initiate 6 Cc rission paper requesting that r,cn pcwer reacters be er:*. frorr. the currently preposed safeauarcs rules and 3. Draft, a new rule designed to protect non-power reactor facilities even though Standards and l0155 have not concurred with this action in the past. 8 k. y(dames R. Miller,'A sistant Direc f for Reactor Safeguards Division of Operating Reactors a 0 O e 0 0

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t U s NUCLE AR REGUL ATORY CoMvisslON c,........ g.....,. - t g I Report of Intervier l James R. Miller, Chief, Operating Reactors Branch #3, division of Licensing, NRR, upon followup interview concerning an allegatior. that he gave a false afficavit to the Atomic Safety Licensing Board Panel ( ASLBP) considering the relicensing of the nonpower reactor at the University of California at Los 3 Angeles (UCLA), provided the following information: i He confinned the memorandum (attached) from Miller to Stello,

Subject:

Impact of Proposed Safeguards " Upgrade" Rule on Non-Power Reactors, undated, as being the memo to "Stello" to which he had referred in his previous interview (see Report of Interview dated 3/1/84). He could not establish the date of the memo, but thought based on the context of the memo, that it was written after January 1979 and possibly in May 1979 (because of what appears to be a partial date in the upper right corner of memo). Referring back to his characterization ie the previous interview that the memo sent a message to the effect that "the reactors checked will be in trouble if the 100 rem exemption were lifted," he noted that although those exact words were not used, that that nevertheless was the message contained in the context of the memo. (Investigator note: A review of the meno indicates that the I cited quotation does appear to be an accurate sumation of the basic message conrnunicated by the memo.) l The remaining questions centered around the following language contained in the memo: "As we now see the situation, the fuel elements associated with I these reactors cannot attain or sustain a total exterr.a1 radiation dose rate in excess of 100 rems per hour at three feet; therefore, these non-power reactors will cone under the ' upgrade' rule. The only imediately foreseeable solution is to remove non-power reactors from the proposed safeguards rules and concurrently prepare a separate physical protection rule for non-power reactors" (emphasis added). Mr. Miller. explained that the quoted sentence had to be read in the context of the " operating cycles and fuel management" existent at that time. In other words, if something else were not done, e.g., irradiating the fuel to the self protection level, getting the quantity of fuel below " formula quantity," or changing the operating schedules, the quotation is true. In this particular instance,the changing of the operating schedule was key in facilities like the VCLA reactor, March 12, 1984 a BeJhesda, MD 84-9 Ronald M.. Smith, Investigator. OIA March 13,1984 THis DOCUME NT IS PROPE RTV OF NRC IF LOANE D TO ANQkHE R AGENCY IT ANO ITS CONTf NTS AR OUTsiOE THE RECE,vlNG AGENCv wiTHOUT Pt RutsseON OF TMt Of FsCE OF tNSPECTOR AND AVOITOR _ _ _ _ _ _ mni __ hh a s. _ j

+ l T r.t fcct tr.t.t the qv: te: le'.;stcc talbec it. t( rr ', o f ' s i t '. e r.< - t s ' wr. i l e Mr. Miller's " calculations" (Report of Interview dated January 11,1984) eddresses tbt tntal fuel ir the reactor is explained by the f act that whether eierents or total fuel is considered is based on whetter the elements are f "readily separable." Ir. tre case of the UCL A reactor, the fuel eier.ents are j beneath approximately 10 tons of interlocking concrete caps which must be removed before access to the individual elements can be made, in contrast, the "open pool" reactnrs allow ready access to individual elements simply by reaching down and grabbir.; them in some cases. Accordir. gly, the calculations for the UCLA_ reactor were made considering all of the fuel elements together within the reactor. When asked whether to his knowledge any of the three proposed steps mentioned in the memo had been acted upon, he replied that he was not aware of any action being taken on any of them.

Attachment:

As Stated 1 1 t l

O.. 4UCLE AR REGULATORY COMMisslO. ~ .t. O* tee c' insne-o se Aad f o' p% c............,. ,eu l - -. +. Analysis of Miller Affidavits As stated by James R. Miller, Chief, Operating Reactor Branch #3, in his affidavit of January 9,1984, he did execute an earlier affidavit on April 8, i 1981 for presentation to the Atomic Safety and Licensing Board (ASLB) j considering the University of California (UCLA) application for renewal of'its license to operate the UCLA research reactor. The Comittee to Bridge the GAP (CBG) has alleged that a portion of the April 1981 affidavit was materially false, specifically paragraph seven, to wit: "I have verified that the i irradiated fuel in the UCLA reactor core emits radiation such that'the dose at three feet will be in ekcess of 100 rems per hour and that the design of the reactor makes accessibility to that fuel very difficult. In addition, UCLA has 1 comitted to schedule reactor operations to maintain the self protection of the fuel in the reactor core." CBG alleges that "Mr. Miller asserted, under oath, that he had personally verified that UCLA's fuel met the 100 rem exemption." (Lines 4-5, page 11. CBG Memorandum as to Status of Contention XX (Security), December 13,1983). l 4 ~ Support for CBG's contention that Mr. Miller's affidavit was false lies primarily in CBG's offer of proof'of an August 15, 1979 letter and a i January 12, 1981 letter. Within the fonner letter Dr. Harold Brown, speaking as the Environmental Health and Safety Officer for UCLA, stated in pertinent p4 part that "It.does not seem possible to meet the 100 r/m at 3' at all times for the reactor fuel." Addressing a related issue of whether UCLA was subject to Category 1 Physical Security Requirements, Mr. Miller in January 1981 said l that because of the quantity of material on hand, UCLA was subject to the requirements contained in 10 CFR 73.67(a)(b)(c)(d) and 73.60 (which itself requires more stringent measures). In the alternative UCLA "would have to be operated to maintain the fuel irradiation level at a dose rate of 100 rem /hr at three feet from any accessible surface." in his January 9,1984, affidavit,.Mr. Miller explains that he did verify "by [ independent calculations," performed by him and a member of his staff, Robert E. Carter, "that the irradiated fuel in the UCLA core would be in excess of 100 rems per hour (unshielded) and that the design of the reactor makes accessibility to that fuel very difficult." Mr. Miller further noted UCLA's previous comitment to the NRC by a letter dated January 29, 1981, that UCLA " intended to schedule reactor operations such that UCLA would conform 7 ith the self-protection criteria for the in-core fuel." ,,,,,,,,,,,.on January 13 (= 23, 1984 BethesdaOMd. .i ,,,, = 84-9 nrah& o,,..,,,.. nm.,4 m. 4 +s. 1m + 4 m +,.. .1 mm

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1- .v o s N,,' l-n;-e e n c. < ; ; m..r.;.. u wc: 'terrt: 'ry w. Mii',e tha4 N cid not 90 I to the reactor to take readings and (tid not cor.fim that UCLAlactually was i following their " intended" schedule. Mr. Miller,went or fci c> plain that he, as a licensing official, was interested Tn what the licensee intended to do under the lice.rse And whether that met regulatory requirements. The question of l whether,LUCLA}as actually performing in that manner is, in his view, within j the purview of IE. Read in its worst light, and out of context. Mr. Miller's first contested ! sentence, wherein he alleges verification of the reactor core emissions, could be characterized as misleading, particularly when read in the context of paragraphs 4-6 of his April 1981 affidavit because it is easy to infer from the on-site references in those paragraphs that Mr. Miller's " verification" was also made on site. Further, he talks in terms of the core " emits" (present tense) radiation; but later in the sentence notes that the dose "will be" (future tense) in excess of 100 rem per hour. As indicated above, Mr. Miller has explained in his most recent affidavit that his verification was via calculations only based on an intended operating schedule to which the licenseehadcommittdsometwo,monthsprevious.Inthe}secondsentenceofthe contested paragraph, Mr. M111erj elearly notes thattVCLA "has comitted to schedule reactor ope tions to maintain the self protec' tion of the fuel in the reactor core." Thus, it can be seen that[Mr. Miller)in the strictes1. sense and according to his affidavits, did verify the emissions Aased on theLUCLA}roposed schedule. Although it can be argued that@r. Millerjcould have been more clear in describing the context of his remarks, i.e., that his verification was based on calculations and not on-site measurement, it is also true that there were indications in the paragraph that he was speaking in terms of future con-ditions and was not necessarily stating a current fact. Secondly, in checking [withtheASLB,itwaslearnedthatnotestimonywastakenconcerningHr. j have been present based on the first affidavit appears to be dispelled by the. January 9 affidavit. J Attachments:

1. Miller Affidavit, dated April 8, 1981

2. Miller Affidavit, dated January 9, 1984

3. Carter Affidavit, dtaed January 9,1984 Investigator Note: Attachnent 1 is D;hibit 3 to the basic recort and Attachments 2 and 3 are attached to D91 bit 2, basic report.

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i Report of Interview Daniel Hirsch, President, Comittee to Bridge the Gap (CBG), residing at Box 1186, Ben Lomond, California 95005, telephone: 408-336-5381, upon interview concerning his knowledge of whether three U.S. Nuclear Regulatory Commission (NRC) employees had provided false infomation to the Atomic Safety and Licensing Board Panel (ASLBP) considering the relicensing of the nonpower UCLA research reactor, provided the following information:

As to Miller - While acknowledging that the second Miller affidavit (January 10,1984) seemed to explain the first (April 1981), Mr. Hirsch noted that both glossed over the salient issue. Miller's assertion that UCLA could meet the 100 rem /hr at three feet requirement was contrary to several earlier representations that it was impossible for UCLA. to meet that requirement. He further noted that it was physically impossible for a 100 KW reactor to meet the 100 rem /hr and maintain it. After three days, the reactor goes below 100 rem /hr TT 1 has been operated for a period of only two hours (the schedule which CLA comitted to in its i J 29, 1981 letter). He further noted t prior to April 1S$1, @anuary(and others) had repeatedly told the Commission that@CLA could

iller, not meet the 100 rem /hr self defense requirement.

~ WhileMiller'haffidavit(parJgraph10)doesnotethatotherdocuments cited y CBG as showing thatLUCLAjand other nonpower reactors did not or could not meet the 100 rem exemption were true when written, his further explanation that the changed schedule (post January 1981) was the basis for his changed view is negated by the fact that the reactor had been operated longer periods prior to January 1981 (4-5 hours) when they "could not" meet the 100 rem requirement. Secondly, the explanation that "could not" was explained by the fact that "the staff meant that the reactors did not reach and maintain 100 rem" was negated by a table attached to SECY 79-187B which showed that[UCLA]the c just could not meet the requirement - not even with extra effort as was other reactors.

• The interview was conducted in the presence of John H. Bay, Attorney with the l

law firm of Chickering & Gregory (business card attached), but doing pro bono I work for the Nuclear Law Center in advising Mr. Hirsch. l } t ,,,........n February 6. 1984 ai San Fra isco. C a l i f. e.i,

• 84-9

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l! L 1 1 1ri surr c r y,{ Miller positio prior tc, Ja%ary 1961 is cirectly p I' opposed to t?fht as stated in his affidavits and, therefore, either the_ earlier or the latter position'was incorrect. It is CBG's-positinn that.the earlier position was correct, i.e., the reactor cannot mect the 100 rer requirement, and, therefore, the affidavits are materially false when they state that the reactor can. Mr. Hirsch' further noted the significance of the affidavits as being i the fact that they were submitted in suppert of a motion for a summary judgement which would have cut off discussion of whether upgraded safeguard measures were necessary for the he]issuein CLA reactor. Accordingly, there would have been no testimony on order to resolve whether the @CLA] reactor met the 100 rem exemption ifgiller's,'affidavithadbeenacceptedwithoutquestion. Mr. Hirsch will provide documents and explanation which further support the position expressed above during the week of February 13, 1984, by mail. As tofCarlsoM - It is Mr. Hirsch' position thatICarlsokspoke the truth as it existed in 1979, but with the 1981 affidavTt, and more recently with the 1984 affidavit, he attempts to give the impression that there was no sabotage protection requirement. The promulgation of Sections 73.60 and 73.67 was in response to India's alleged use of research fuel to make an' atomic weapon which purportedly identified the need for " upgraded safeguards" against theft. Sabotage protection was not " upgraded" at the time, but was nevertheless still a. requirement. Accordingly, the impression that sabotage protection was not and so is. I not a requirement is contrary to historical fact. Consequently,Qarlson was telling the truth in Glen Ellyn, but omitted it in 1981. l Mr. Hirsch suggested a reading of ASLBP opinions LBP 83-25a and LBP 1 83-67 for their interpretation of the meaning of 73.40(a) as support for { his position. He characterized current attempts to get the Comission to verify that there never was a sabotage protection requirement (SECY 83-500) as an attempt to retroactively remove the requirement. (if this is true, it calls into question whether the Corission is being misled by the staff in SECY 83-500 at least as to historical fact.) As tokColleen Woodhead3-The central issue, as tohs. Woodhead] is that heldiY not apprise the ASLBP of the existen e of]was a Category 1 the January 12, 1981, -l iller] letter which showed that at that timp UCLA acility requiring sabotage protection.[Herj w ole basis for the staff position that $abotage requirements did not apply was based on the assertion that UCLA was not and never had been a Category 1 facility. Mr. Hirsch furtlier noted thatlMs. Woodheadjhad offered in her December 1, 1980, argument that only 73.67'TProtection Against Thef t) applied because {UCLUwas a Category 2 facility. If this had been accepted by the Board, it would have been the basis for the Board not accepqing CBG's contention concerning the matter of sabotage protection at all. Ms. Woodhead's] non-production of the January 12 and 29, 1981 letters'to the ASLBP reinforced the staff argument that only 73.67appliedbecause{UCLAwas not a Category 1 facility. a-

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^ .O S NUCLE AR RE GUL ATORY COMYisslON ,a Ay h!<+.?',j c,., Report of Intersiw James R. Miller, Chief, Operating Reactors Branch $3, Division of Licensing, NRR, upor. followup interview, concerning an allegation that he gave a false affidavit to the Atomic Safety and Licensing Board Panel ( ASLBP) considering Angeles (UCLA)g of the nonpower reactor at the University of California at Los the'relicensin , provided the following information: In regard to Daniel Hirn_ch's allegation (see Daniel Hirsch interview dated February 13,1984) that Miller's] earlier assertion that UCLA could meet the t __ "100 rem /hr at three feet' requirement for exemption from certain safegufrds requirements was contrary t several earlier representations, Mr. Milkr n ed that prior'to his letter to CLA' on January 12, 1981, he did say thatl VfLA could not meet the ~100 rem / r exemption based on the fact that they operated the reactor in such a way that it could not meet the exemption. When it was determined that either fuel had to be removed to another location or the reactor operated in l'uch.4 way as to maintain 100 rem /hr at three feet (January 12 letter), U the 100 rem level. k'CLA.lcommitted to opera e the reactor so as to maintain dtoachi]evethatlevel. s previously addressed,

r. Miller verified via calcula-

~ tions what operating schedule would be requi Based on the last page of the calculations attached to his 1981 affidavit, it can be confirmed that[M_illerJalso showed that after a week, a two hour opera-tion would result in an exposure of only 26 rem /hr. Accordingly, if the reactor operated for two hours on Friday, it would have to be o erated again on Monday or the rate would drop below 100 rem /hr. Therefore, Miller]is in agreement with Hirsch that after three days, th ir. radiated fue couTd drop below 100 rem /hr. But[MillerJagain noted thu UCLA committed to a schedule that would maintain the-~100 rem /hr. Whether U A f~ulfilled its "comitment" was a compliance issue. He noted that he was~alWays talking in terms of " calculations" of dosage and " commitment" of the licensee for licensing purposes. After reviewing the August 15, 1979 letterfrorUCLAlto[tiille)whereinbVCLA i seem ppssible to meet the 10 rem at 3' at all times f r stated "It does not[Millerjobserved that that was consistent with both his the reactor fuel." l January 12 letter and his calculations based on operation of the reactor. In* i short, if the operations were not in accordance with the calculations attached to his 1981 affidavit (which they weren't) then the statement was true. He did not believe that he had ever made a flat coment that they could not meet the exemption, rather he had always limited such judgments to the then current operating conditions of a reactor. l l Februa ry _29, 1984 ppthesda,MD ,,,,, 84-9 Ronald M. Smith, Investigator, DIA 29, 1984

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r et t wot re ir r.( said sorething to the effect that "the reactors checked will be in trouble if the 100 ren exenotion were lifted." But this was in the context that if there were not a 100 rem /hr exemption, then total fuel would be counted. The total fuel in most instarices would be ir. excess of ferrula cuartity (5 kg.), thereby triggering the safeguards requirements 10 CFR 73.60. 4 (Investigator's Note: A copy of what is believed to be the referenced "Stello" meno was retrieved from the Office of Inspector and Auditor investigative file after the interview. As it makes reference toFUCLA]being unable to attain and sustain a total external radiation dose rate TE excess of 100 rems per hour at three feet," an additional followup interview with Miller 3will be necessary the week of March 5 when he returns to the office.

• Victor Stello, Deputy Executive Director for Pegional Operaticns and Generic Beguilements, was at that time Director, Divisicn of Operating Reactors, NRR.

l

~ f *. l 1 .s NUCLE AR RE GUL ATO3Y cOMMisslO p... .i.,.,.,. t_.. s. Report of Interview James F.. Miller, Chief, Operating Reactor Branch #3, Civision of Licensing, NRR, upon interview concerning an allegation that he gave a false affidavit to the ASLB in its consideration of the relicensing of the UCLA nonpower reactor, provided the following information: Pursuant to a Memorandum and Order by the ASLB dated December 23, 1983, Mr. Miller has prepared an affidavit which addresses the allegation made by the Comittee to Bridge the Gap. A copy of the affidavit (which has also been provided to the ASLB) was provided to this investigator and is attached hereto. Upon reading the affidavity this investigator asked clarifying questions. Based on the affidavit andLMr. Miller's] calculations" using data received answers, his explanation of what he said to the AS!2 wag that he had made telephone from UCLAJto determine what level of radiation the irradiated fuel would give off 'if @CLAj in fact, carried out their comitment to operate the reactor in accordance with a scheduled which they had also provided. As indicated in his affidavit, he and Mr. Robert E. Carter (copy also attached), usin their " independent" calculations, produced a result that was consistent assertion that they could maintain a 100 rem /hr, with UCLA' ing the operating schedule to which they had comitted.pr more, level by foll 1 Mr. Miller did not actually go to the reactor to take readings and did not confirm that UCLA} was actually following their intended operating schedule. Mr. Miller asserted that, read in the light of his nost recent affidavit and the attendant facts presented, his original affidavit was correct. He further explained that he was interested in what the potential licensee intended to d: under the ' license and that the question of whether {CLA was actually perfom. ing in that marrer was a matter for IE. Mr. Miller was advised that he would be contacted again if further questions were raised, to which he readily agreed. ~ Attachments: As Stated l January 10, 1984 M sda, M3 .i p.= 84-9 nanaia s. anith. Investicat or. on NN o.,,,,,o. .3m,m,,,.,ana

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'f' . s. NUCLE AR REGUL ATORY COMMissID 4 ^**:s?8 f*t;.ct'.* P T A,.*'t-Ja.rf 3C, MN !s**t "si. s's-Coverison of Carlsor. Af fidnits i In his affidavit of January 10, 1984, Donald M. Carlson, Plant Protection i Analyst, Fuel Facility Safeguards Licensing Branch, Division of Safeguards, Nuclear Materials Safety and Safeguards, addresses the allegation made by the Committee to Bridge the GAP (CBG) that in his earlier affidavit to the Atoinic Safety and Licensing Board (ASLB), dated April 7,1981, he made a false material statement to wit: "There are no explicit NRC regulations for the protection of non-power reactors against radiological sabotage..." In support of the allegation, CBG cite'd the following: ) On August 27, 1979, at a meeting in Glen Ellyn, Illinois, discussing the h"ImpactoftheSafeguardsUpgradeRuleonNonpowerReactorLicensees,"r. C might add, you have to protect against sabotage under the provisions of 73.40" (emphasis added) and later, "You have to follow the provisions of F3Tc which tells you that you have to follow 73, Part 73, and in there, in 73.40, it says you have to protect against sabotage..." Basically, it is Mr. Carlson's position that he was correct in both instances and that the apparent inconsistency is explained by a change in NRC position in the interim'between the two statements. In support of this explanation, Mr. Carlson offers that on January 16, 1979, the Office of Standards Developments, NRC, had submitted a staff paper to the Comission which proposed amendments to then regulations 73.47 (now 73.67) limited to. consideration of thef t of Special Nuclear Material (SNM) which "did not include sabotage protection." He went on to add that "the NRR staff is currently examining the necessity to require additional physical protection measures at non-power reactors that have the potential for exceeding Part 100 release limits as a result of sabotage." If such a change were necessary, it was to be published as a separate section of Part 73. Mr. Carlson also notes that an unclassified abstract of a June 1979 Los Alamos Scientific Laboratory study classified confidential and entitled, "Conse-quences of Sabotage of Norpower Reactors" (NUREG/CR-0843, LA-7845-MS), in pertinent part, stated that only one nonpower reactor (not UCLA's) had a ( J potential for release of significant anounts of radiation. He goes on to cite a July 24, 1979, publication of an NRC rule wherein the discussion notes that "Since protection against sabotage is not within the scope of these amendments, an entry search requirement is not necessary." I sa,e,oset.on on 'f amm y u T7 1QRd at h+ hmeda M. F ne

• Rd-Q RmalIM. Snith, Investigator, OIA

[ January 27, 1984 e, Date cicietec l OvTs Dt THE nt ElvlNG A ENCY WI H UT Pt m SiON FTHEOF#Ct SP C AND UDITOR e mn

,y l . erit'- t'(* c ot.tiun s it.61 t,s u c c r tra Co r n x tc;tt a r.: t r.( 6:: V.e c r'ules, "there appears to be a clear and unmistakable approval by the Conric.sion that sabotage protection was not needed at nonpower reactors at tM time of ny affidavit." Therefore, he believes his April 7, 1951 affidavit tc, l be true. As to the inconsistency of that statement with the prior statement concerning l i section 73.40 made in 1979,' Carlson notes that at the time nf the meeting (he l affirms that he did make the statemer,ts concerning)73.40), "a review and l analysis of the Los Alamos study (referenced above had not been made yet" nor had a staff technical position been developed. "Therefore, because of the uncertainty of what the NRC position was, he did not feel his response was inappropriate. He goes on to concede that a more accurate statement might have inr.luded "you may have to protect against sabotage..." Then he again notes that the " status of the safeguards regulations covering sabotage protection-for nonpower reactors was still uncertain. In addition, the practical impact of the new regulations 73.60 and 73.67 was still being discussed." Of significant interest isharlson's] discussion of the apparent fact that reference to sabotage in 73.40(a) was originally directed toward " industrial sabotage" and thef t and not radiological sabotage. 1 In sum.harlson concludes "that my statements at the 1979 meeting...were true at the time...and do not contradict the truth of my statements in my 1981 affidavit."

Attachment:

Affidavitofh.M.Carlson," dated 1/10/84 w/cy of 4/7/81 affidavit. l

g 1 f h c i b~ I-N U C L E A R R E G U L A T C R 't C O M M I S 0 ! C N I i l IN THE MATTER QF: IMPACT OF THE SAFEGUARDS UPGRADE RTJ ON NONPOWER REACTOR LICENSEES l \\ s I l i S 1 i Place - Glen Ellyn, Illinois i Date. August 27, 1979 Pages 1-I F l l \\ 'aff s Trev ( f:c:1:c.,; g ACE.FEDERAI.RIPOR'IIRS,INC. ,/ y CYfaialE*Pern'rs \\ A&L North C=sitol Street 1 Washingten C.C 2C001 l l 1 NATIONWICE C::VERAGE.DAJLY ^

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== r 1 l [. i' I' a a 3 4 5 IMPACT OF THE SAFEGUARDS UPGRADE RULE 1 I 6 ON 7 NONPOWER REACTOR LICENSEES m 8 S 10 PRESENT: 11 FRANK PAGANO, Chief, Reactor Safeguards Branch, 12 Division of Operating Reactor, Office'of Nuclear Reactor Regulation, NRC 13 / DONALD CARLSON, Reactor Safeguards Analyst 34 STEVE RAMOS, Project Manager, Division of 15 Project Management 16 ROBERT BURNETT, Director, Division of' Safeguards, Office of Nuclear Materials Safety and 17 Safeguards (NMSS) t la ROBERT NULSEN, Project Manacer, Division of Safeguards (NMSS) 19 to Nuclear Regulatory Commission 21 Conference Room 799 Roosevelt Road 22 Glen Ellyn, Illinois August 27, 1979 23 10:00 o' clock a.r.. 24 25 9 l

56 I ' [ ca;l the facility, but the visiter center en the We : ^ i j 2 Coast, the Trojan was bombed, but to answer your first 3 l question, no, theft and sabotage are not the same, and d in the upgrade rule that is being published, I thought \\ 5 it had gone out, we have moved away from individual 6 threats to facilities, and'we have defined two types 7 of threats in this country postulated threats, one 8 being a threat and one being a sabotage. 9 Some facilities would have to meet bo th to threats, like a high-enriched uranium facility that 11 has greater than trigger quantities available. They 12 have both a sabotage and a theft potential, whereas a 13 nonpower reactor, if it's below trigger quantity, most 14 probably, it has a single threat, that being sabotage. 15 Now, if they have unirradiated cores sitting 16 on hand, then that could put them into the threat, I 17 mean a theft, I meant theft, that could put them into 18 the theft scenario, but no, they're both being treated 19 totally different. i v o 20 MR. CARLSON: JKhat I might add, you have to 21 protect against sabotage under the provisions of 73.40. Et MR. DAVIS: These were being -- they were being ZI made contiguous here, or less than. I w a s i n't e r e s t e d 24 in separating them. s I 23 MR. BURNETT: I'm sorry. I didn't go into 1 i i_ ~ ~

k ac:ts: area to Just our fuel vault er maybe als: :: ..e pool core or the poci surface if some of the elements 3 are not self protecting, but then I think to myse well, somebody could conceivably come down and ruptu 5 a bean port, drain the pool, commit sabotage down there t 6 so even though things wouldn't be stolen, they could 7 cause a horrible damage. i w" s MR. NULSEN: Category II/III rule does not 8 protect against sabotage. 10 MR. BURN I was going to ask you, is 11 sabotage coming? 1 ~~ - t 12 ISabotage has alvars'been here. MR. CARLSON: i I 13 I In 1974, your initial plans were submitted to protect i 14 i against sabotage. You have to follow the provisions of 15 50.35 C which tells you that you have to follow 73, 16 Part 73, and in there,I in 73.40, it says you-have"to 17 protect against sabotage.,, 18 l Now, the plan that NRR put together to meet { 19 $ Category II facility encompasses saborate and 20 Sprotectiv'e measures. It protects the reactor as well ~ ~ l 21 as the fuel in the reactor, vital equipment, if you 22 will, or the old ter= of essential equipment which the 23 staff used in 1974. 24 MR. RAMOS: The. plan doesn't protect anything. 25 MR. BURN: Okay. Thank you. I l I

.e w \\ 'a..]):\\ > y. RULE MAKING ISSUE December 6, 1983 s m _,3_sco (Notation Vote) For: The Commissioners From: William J. Dircks Executive Director for Operations

Subject:

C. CLARIFICATION OF GENERAL PHYSICAL PROTECTION REQUIREMENT

Purpose:

To obtain approval to publith for public comment, a proposed amendment to 10 CrR 73.40(a). This amendment will clarify the intended application and codify current 3ractice regarding the need to address theft or sabotage, or >oth, in the physiL1 protection plans for special nuclear material. Category: Minor policy issue. Discussion: The staff is proposing to amend the general physical protec-tion requirement in 10 CFR 73.40(a) to clarify and codif;/ the policy and practice regarding the application of this paragraph. This action is necessary because of a recent i l interpretation of this provision by. an Atomic Safety and Licensing Board.

Background

Section 73.40(a) currently states that "Each licensee l shall provide physical protection against radiological sabotage and against theft of special nuclear material at j the fixed sites where licensed activities are conducted. Physical security systems shall be established and main-tained by the licensee in accordance with security plans approved by the Nuclear Regulatory Comission." This provision is used only as a general statement of the need for physical protection and not as a detailed requirement. The detailed physical protection requirements for each class of licensed facility or material are presented in ' other sections of Part 73. i CONTACT C. J. Withee, SGFF 427-4040 \\ Dec3:

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Safety and Licensing Board has hele citing 10 CFR 73.40(a) as the basis for its _ decision that a facility s2 ject to 10.CFR 73.57 nust.specifically trtti bo.h theft.and sabeta;t p -in its physical protection pla' e.e the.,gh Seclicn 72.67 J only mentions the threat of theft. The Board concluded that, because both the threats of theft and sabotage are o-mentioned in 10 CFR 73.40(a),c detailed requirements which ostensibly cover only one of the threats do not fully ' satisfy the general requirement in Section 73.40(a), and. hence, the threat not mentioned in the detailed requirements in Section 73.67 must be separately treated'in a licensee's physical protection plan. The Board also ruled that, lackin; specific requirements, the hearing process should detennine the appropriate measures that should be applied in the case at issue (UCLA research reactor) to protect against sabotage. In reaching its decision, the Board did not rule on the degree of need for sabotage' protection at facilities subject to 10 CFR 73.67 nor the degree to which measures that provide protection against theft also provide protection against-sabotage. The Board based-its decision solely on its reading and interpretation of the regulation as written. The Board went further to suggest that, iff policy and practice differ from the Board's interpretation, the Commission should amend the regulation to be consistent. Staff's policy and practice has been to provide detailed requirements in Part 73 that are sufficient to define the~- extent to which protection against sabotage or theft, or both, must be addressed by specific classes of licensees. Therefore, if a licensee satisfies-the detailed requirements in the section which applies to its specific class, the general requirement in Section 73.40(a) will be satisfied. This is t'.e: staff's practice even when the detailed requirements mention :- theft or only sabotage as a threat. ' Physical security plans are evaluated and approved on this basis. There has been a long-standing policy that acts of sabotage are not included in Section 73.67. The issue of physical protection for special nuclear material of moderate and low strategic significance (Category II/III) materials was first presented to the Conrnissioners. in SECY 77-79. Staff reconrne~ e 4 that.no specific protection measures should be required for dispersion scenarios. The Conrnission approved the general approach by staff and gave the following direction: l "The grading of physical protection measures for nuclear material should be described in perspective to its poten-tial weapons worth, particularly uranium enriched less than 20 percent in the isotope uranium-235 and plutonium and U-233 in quantities less than 2 Kgs." i h 1 ___m __mm.__

e :,r ss : v s * .J r a e rule to the Cor=iss1on 1n SE') 7i '4 and stated the follow.: 'Although nuclear materials ri;n be involved in a threat to the public thro,-h a d;1:eq ;- sceraric, such as i sabotage, SECY 77-79 states t*.e risk from dispersion of l small or moderate quantities of nuclear materials (in-l cluding irradiated materials) does net appear to pose a risk to the public sufficient to justify specific protec-tion measures for these materials at this time." When staff submitted a final rule to the Commission on January 16,1979 (SECY 79-38), the Cornission paper stated that the proposed amendments did not include sabotage protection. When the Commission approved publication of the final rule (Chilk's memo of June 28,1979), staff was requested to take a closer look at the need for specific protection against sabotage in the rule. In its reply to the Commission (Dircks' memo of August 13,1981), staff stated the following: " Additional protection against sabotage or the dispersal of plutonium would not be justified since the potential consequences to the public health and safety possibly arising from these events would be no greater in magnitude than those which might occur from the use of unregulated chemical or biological agents. The problem of sabotage of fuel in NPRs has been found to be minimal. A Los Alamos National Scientific Laboratory study concluded that only one reactor has any potential of a dangerous radio-logical release from an act of sabotage and that reactor does not operate with either the frequency or at the power levels necessary for it to cause a public health and safety problem." The threats of both sabotage and theft cited in Section 73.40(a) have not been applied to all types of licensees. The sections of Part 73 treating specific licensee classes have been used to define the necessary physical protection measures for each class. The Board's recent ruling has shown that differing interpre-tations can result from the present wording of 10 CFR 73.40(a). The Board's interpretation could impact several classes of licensee.s, not just those subject to 10 CFR 73.67. To preclude such an eventuality, staff proposes to issue a clarification of Section 73.40(a). - - - _. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ~ - - - - ^ - ^ - - ~ ~ - ^ ~ ~ ~ ' ~ ' ^ ~ ~ ~ ^ ~ ~ ~ ~ ~ ~ ^ ~ ~

~ ~ p c c-.- 3 s s . t.:,3 ) r, ;., ;;-- n :. 1. ADerove the proposed arend ent and authorize publication of Enclosure A in the Federal Register for public co.ent. 2. Certify, in order to satisfy the requirements of the ) Regulatory Flexibility Act, 5 U.S.C. 605(b), that this rule l will not have a significant economic impact on a substantial number of small entities. This Certification is included it the enclosed Federal Register Notice. 3. Note: a. That the Congressional Committees. will not be notified of this Comission action. b. That, in accordance with 10 CFR 51.5(d)(3), neither an environmental impact statement nor a negttive declaration need be prepared since the amendments are not significant from the standpoint of environmental impact. c. That the Chief Counsel for Advocacy of the Small Business Administration will be infonned of the certification and the reasons for it as required by the Regulatory Flexibility Act. d. That a public announcement will not be issued. e. That copies,of this notice will be distributed to affected licensees and other interested persons by the Office of Administration. f. That during its 283rd meeting, November 17-19, 1983, the ACRS decided not to comment on this proposed ~ amendment. g. That a Regulatory Analysis is attached as Enclosure B. 3 / U W111am3.Dircks Executive Director for Operations

Enclosures:

A - Federal Register Notice B - Regulatory Analysis 9 a________._ _____.______m.___

l . 1 l ) 1 Commissioners comments or consent should be provided directly 1 to the Cffice of the Secretary by c.o.L. Fridcy, December 23, I 1983. Commission Staff office comments, if any, should be submitted to the Commissioners NLT Friday, December 16, 1983, with an information copy to the Office of the Secretary. If the paper is of such a nature that it requires additional time for analytical review and comment, the Commissioners and the Secretariat should be apprised of when comments may be expected. DISTRIBUTION: Commissioners OGC OPE OI OCA OIA OPA REGIONAL OFFICES EDO ELD ACRS ASLBP ASLAP SECY

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I l l FEDERAL REGISTER PACKAGE FOR THE PROPOSED CLARIFYING AMENDMENT TO 10 CFR 73.40(a) OOg e ENCLOSURE A

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l Clarification of General Physical Protection Re:;uirerient AGENCY: Nuclear Regulatory Comission. ACTION: Proposed rule.

SUMMARY

The Nuclear Regulatory Comission is proposing to amend its general i

physical protection requirement for fixed sites to clarify the intent that physical protection against sabotage or theft, or both, musc be provided only as required by specif'ic sections of 10 CFR Part 73 which apply to designated classes of facilities or material. This action is deemed necessary because a recent ruling by an Atomic Safety and Licensing Board has made an interpre-tation of the general requirement which is different from its intent and application. This amendment will clarify the Comission's policy regarding the intent of the general physical protection requirement and will codify its present application. DATES: Coments must be received on or before (sixty days) Comments received after this date will be considered if it is practical to do so, but assurance of consideration cannot be given except as 'to comments received on or before this date. ADDRESSES: Coments or suggestions regarding the proposed amendment should be sent to the Secretary of the Comission, t,.S. Nuclear Regulatory Comission, Washington, DC 2GM. '<ttention: Docketing and Service Branch or hand delivered between 8:15 AM and 5:00 PM to Room 1121, 1717 H Street, NW., Washington, DC. Coments received will be available for examination and copying at the NRC Public Doctanent Room at 1717 H Street, NW., Washington, DC 20555. 0 0

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.. : m ;,. Licensing Branch, Division of Safeguards, Office of huclear Material Safety and Saf eguards, U.S. Nuclear Regulatory Comission, Washingtcr, DC 20555, Telephore (301)427-4040. SUPPLEMENTARY INFORMATION: The Nuclear Regulatory Comission is proposing to amend its general physical protection requirement for fixed sites,10 CFR 73.40(a) to clarify and codify its policy and practice regarding the application of this paragraph. This action is necessary because of a recent differing interpretation of this provision by an Atomic Safety ind Licensing Board. i Section 73.40(a) currently states that "Each licensee shall provide physical protection against radiological sabotage and against theft of special nuclear 1 material at the fixed sites where licensed activities are conducted. Physical security systems shall be established and maintained by the licensee in accor-dance with security plans approved by the Nuclear Regulatory Comission." q The Comission uses this provision only as a general statement of the need for physical protection and not as a detailed requirement. Detailed physical protection requirements for each class of licensed facility are presented in other sections of Part 73. It has been Comission policy and application to rely upon the detailed requirements in the other sections of Part 73 to define the extent to which protection against sabotage or theft, or both, must be addressed by specific classes of licensees (i.e. if a licensee satisfies the detailed requirements in the section which applies to its specific class, then the general need for physical protection as described in 73.40(a) will be satisfied). This has been considered to be sufficient even when the detailed requirements mention only theft or only sabotage as a threat. 1

In a recent ruling, an Atonic Safety and Licensing Board decided, citing g73.40(a) as the basis for its decision, that a facility subject to the l physical protection requirements of 5 73.67 must specifically treat both theft and sabotage in its physical protection plan, even though 5 73.67 mentions only the threat of theft The Board concluded that, because both the threats of theft and sabotage are mentioned in 5 73.40(a), detailed requirements which ostensibly cover only one of the threats do not fully satisfy the general requirement in 573.40(a), and hence, the threat not mentioned in the detailed requirements in 573.67 must be separately treated in a licensee's physical protection plan. In reaching its decision, the Board did not rule on the degree of need for sab'otage protection at facilities subject to 573.67 nor on the degree to which measures that provide protection against theft also provide protection against sabotage. The board based its decision solely on its reading and interpretation of the regulation as written. The Board went further to suggest that, if the Commission's policy and practice differ from the Board's interpretation, the regulation should be modified. The Board's recent ruling has shown that differing conclusions can result from the present wording of 573.40(a). Also, the Board's interpretation could impact several classes of licensees and not just those subject to 573.67. Therefore, to avoid any future differences, a clarification of 573.40(a) is being proposed that expressly incorporates into the text of 10 CFR 73.40(a) the Commission's policy and application referred to above.

.e. REGULATORY FLEXIBILITY CERTIFICA!!DN In accordance with the Regulatory Flexibility Act of 1980, 5 U.S.C. 605(b), the Commission hereby certifies that this rule will not, if promulgated, have a signi-ficant economic impact on a substantial number of small entities. This proposed rule would amend 10 CFR Part 73 to codify current Conmission policy and practice. Because this rule,merely clarifies current practice and is in fact more lenient than other interpretations of the general physical protection requirement, there is no economic impact on any current or future licensee. PAPERWORK REDUCTION ACT STATEMENT This proposed amendment contains no information collection requirements and therefor is not subject to the requirements of the Paperwork Reduction Act of 1980(44U.S.C. i 3501etseq.). ENVIRONMENTAL IMPACT Pursuant to the Commission's regulations in 10 CFR Part 51, paragraph 51.5(d), I neither an environmental impact statement nor a negative declaration need be ~' prepared since these amendments are not significant from the standpoint of environmental impact. REGULATORY ANALYSIS The Commission has prepared a regulatory analysis of this proposed amendment. The analysis explains why there is no impact from this regulatory action and discusses O

.y .t. the potential for problems if the action is not taken. The analysis is available for inspection and copying in the NRC Public Document Roo,1717 H Street, NV.'., Washington, DC. Single copies of the analysis may be obtained from Dr. Carl J. Withee, Mail Stop 881-55, Fuel Facility Safeguards Licensing Branch, Division of Safeguards, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Comission, Washington, DC 20555, Telephone (301) 427-4040. LIST OF SUBJECT TERMS IN 10 CFR PART 73 Hazardous materials-transportation, Incorporation by reference, Nuclear materials, j Nuclear power plants and reactors, Penalty, Reporting requirements, Security measurc For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, as amended, and l 5 U.S.C. 553, notice is hereby given that the NRC is proposing to adopt the following amendment to 10 CFR Part 73. PART 73 - PHYSICAL PROTECTION OF PLANTS AND MATERIAL i 1. The authority citation for Part 73 is revised to read as follows. AUTHORITY: Secs. 53,161, 68 Stat. 930, 948, as amended, sec. 147, 94 Stat. 780 l (,42 U.S.C. 2073, 2167, 2201); sec. 201, 88 Stat.1242, as amended, sec. 204, 88 Stat. 1245 (42 U.S.C. 5841, 5844). Section 73.37(f) is also issued under sec. 301, Pub. L. 96-295, 94 Stat. 789 l (42 U.S.C. 5841 note). s. e 4 L

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51 1.2., 71.~A g., 73.55 are 1ss.,e: unter se:.163, Ci Stat. 946, as amencea 7 (a2 U.S.C. 2201(b)),1873.20, 73.24, 73.25, 73.26, 73.27, 73.37, 73.40, 73.45, 73.46, 73.50, 73.55, 73.67 are issued under sec. 1611, 68 Stat. 949, as amende:: (42 U.S.C. 2201(i)); and il73.20(c)(1), 73.24(b)(1), 73.26(b)(3), (h)(6), and i (k)(4), 73.27(a) and (b), 73.37(f), 73.40(b) and (d), 73.46(g)(6) and (h)(2), 73.50(g)(2),(3)(iii)(B)and(h),73.55(h)(2),and(4)(iii)(B),73.70,73.71, 73.72 are issued under sec. 1610, 68 Stat. 950, as amended (42 U.S.C. 2201(o)). 2. In 573.40, paragraph (a) is revised to read as follows: 573.40 Physical Protection. General requirements at fixed sites. (a) Each licensee shall provide physical protection at the fixed sites where licensed activities are conducted, either* against radiological sabotage. or [. sad.] against theft of special nuclear material, or against both, as required by [at-4he-f4xed-s4tes-where,34 sensed-astiv4t?es-are-sendusted) and in accordance 9 with the specific requirements contained in other sections of this Part which are applicable to the specific class of facility or material. Physical security systems shall be established and maintained by the licensee in accordance with ) security plans approved by the Nuclear Regulatory Comission. Dated at Washington, DC, this day of 1983. For the Nuclear Regulatory Comission. l Samuel J. Chilk, Secretary of the Commission.

• Comparative text has new words underlined and deleted words in brackets and dashed through.

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g-REGULATORY ANALYSIS FOR PROPOSED CLARIFYING

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1. 1ENDMENT TO 10 CFR 73.40(a')

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4 C E TJ t 2 P ' '#. t'! ! ! Clan ficai e c' h e a1 f *.!':e' Frr e::, Fe: ry t ;3 d Statement of Problem Paragraph 10 CFR 73.40(a) currently states that "Each licensee shall provide physical protection against radiological sabotage and against theft of.special nuclear material at the fixed sites where licensed activities are conducted. I Physical security systems shall be established and maintained by the licensee in accordance with security plans approved by the Nuclear Regulatory Comission." The Comission uses this provision only as a general statement of the need for physical protection and not as a detailed requirement. The detailed physical protection. requirements for each class of licensed facility are presented in other sections of Part 73. It has been Comission policy and application that the detailed requirements in the other sections of 10 CFR Part 73 define the i extent to which protection against sabotage or theft or both must be addressed f' by specific classes of licensees. In a recent ruling, an Atomic Safety and Licensing Board has held that a facility l licensed under 10 CFR 73.67 must specifically treat both theft and sabotage in ~ its physical protection plan even though section 73.67 mentions only the threat of theft. The Board based its decision on its reading and interpretation of the regulations as written. Thus, the Board concluded that, because both the threats of theft and sabotage are mentioned in the general provision paragraph (10 CFR 73.40(a)), detailed requirements which mention only one of the threats do not [ fully satisfy the general provision. n The Board's recent ruling has shown that different interpretations can result-from the present wording of 10 CFR 73.40(a). Such interpretations could impact L j i w

-c-i i se.erai classes of licensees, not just those 11cer.se: ur.cer 10 CFR 73.67. There. ) fore, to preclude such an eventuality, a clarification of the language in paragraph 73.40(a) is needed. l An amendment in the language will codify current practice for all fixed site licensees who must provide physical protection. Because paragraph 73.40(a) applies only to fixed sites, no similar clarification is needed for the regulations covering transport of special nuclear material (SNM). The significance of taking no action to address the problem would be to allow various interpretations of the intent of Section 73.40(a) to be made. Such varying interpretations could cause problems in future licensing and relicensing actions. Other Licensing Boards also might interpret the regulatory language in accordance with the interpretation made by the current Board. Objective The objective of this rulemaking action is to clarify the NRC's policy and practice regarding the use and relationship of Section 73.40(a) and the other sections of Part 73 which contain detailed requirements for specific classes of licensees. This amendment will codify the current application of 73.40(a) and show the basis under which physical protection plans are presently approved. l Thus, future differing interpretations regarding the intent of the general provisions paragraph will be eliminated. I I Alternatives 1 Two alternatives were considered in detail: 1)makingaclarifyingamendmentto the current rule language, or 2) taking no rulemaking action while continuing / current licensing practice. Q. S e L_

m The cost and benefit of making the clarifying e end era are sunmarized as follows. 1) In the future, the possibility for making dif fering interpretations of the l NRC's policy and application regarding 73.40(a) will be eliminated.

2) Current and future licensees will not be economically impacted because the amendment merely codifies a course of action that the NRC is already pursuing.

3) There will be no cost to NRC operations.

The impact of not making the rule clarification is summarized as follows:

1) A lack of clarity about the intent of the regulation would be allowed to continue; this situation has already required extra staff time and effort in one if censing hearing which is not yet resolved.

An estimated 'i additional 0.4 to 0.8 staff year would be expended in litigating the additional security measures which should be provided to specifically protect against sabotage. This issue could come up in future licensing and relicensing hearings, and the probable impact on staff time and ~ resources is uncertain. Conclusion Alternative 1 (issuing a clarifying amendment to 73.40(a)) should be implemented. The cost to the Commission is negligible and by eliminating the possibility for making various interpretations concerning the regu'tation's intent, much staff and I licensee time can be saved in the UCLA hearing and in future licensing and relicensing actions. __A_.-_--._____

.f r. ,.., ( /f l 4 J.;iED STATis N AMi'. :. NUCLEAR REGULATORY COMMISSION I ATOMIC SAFETY AND LICENSING BOARD l Before Administrative Judges i John H Frye, III, Chairman 1 Glenn O. Bright d l Dr. Emmeth A. Luebke In the Matter of Docket No. 50-142 OL ) (Proposed Renewal of-THE REGENTS OF THE UNIVERSITY Facility License) l OF CALIFORNIA ASLBP 80-444-05 OL (UCLA Research Reactor) February 24, 1984 ORDER By March 9,1984, UCLA and Staff are to serve on the Board, lead counsel for CBG, and each other a description of the level of threat of i sabotage which UCLA's physical security plan is designed to meet and Staff's evaluation of that level of threat. It is so ORDERED. THE ATOMIC SAFETY AND LICENSING BOARD 1 [ 8 { 3 ) t. y st A tl. .C N l ' $ l a l Entneth A. Luecke ADMINISTRATIVE JUDGE I N M Glenn 0. Bright / ADMINISTRATIVE JUDGE h..,, John M Frye Ill, Chairman 'ADMgTR.AT,I E JUDGE J Dated at Bethesda, Maryland, this 24th day of February,1984. ?-f 0 ? 0 3 ? i 5

6.,,.. 7, 4 LM T ED ST AIL 1 CJ A.MEF.IC A NUCLEAR REGULATORY COMMISS10fi ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges John H Frye, III, Chairman Glenn 0. Bright Dr. Emmeth A. Luebke In the Matter of Docket No. 50-142 OL (Proposed Renewal of THE REGENTS OF THE UNIVERSITY Facility License) 0F CALIFORNIA ASLBP 80-444-05 OL (UCLA Research Reactor) February 24, 1984 l MEMORANDUM AND ORDER On Friday afternoon, February 17, 1984, the Board's law clerk read the following message to counsel for CBG, UCLA, and Staff: The Board has reviewed the physical security plan and security inspection reports furnished to the Board by UCLA on January 31, 1984. As a result of this review, the Board is concerned that substantial misrepresentations may have been made to it by UCLA and Staff regarding sabotage matters raised by Contention XX. No further steps are to be taken by the parties toward a resolution of Contention XX until such time as the matter of the potential misrepresentations has been resolved. A memorandum and order on this matter will issue next week. The purpose of this Memorandum and Order is to detail our concerns and order responses to them. We begin with a history of the proceedings on Contention XX. CBG first filed its security contention, then numbered XIX and XXI, on August 25, 1980. It stated a generalized concern that UCLA's security plan was inadequate and noted CBG's inability to further specify its x______-__--____________.

~ concern without access.to the security plan. UCLA opposed these contentions on the ground that they were too speculative to be admitted (See University's response of September 9,1980, at 9). Staff, in'their September'16, 1980, response, took the position that no bases had been provided. However, Staff noted the difficulty of formulating a security contention because the relevant information 1s generally unavailable. Consequently, Staff suggested that a ruling be deferred to afford Staff i an opportunity to explain the regulatory requirements to CBG. Staff would then report whether CBG's concerns had been satisfied or whether j it wished to file a specific contention (See Staff's response to l September 16,1980,at30-33). Staff's follow up on its suggestion is set out in Staff Counsel's letters to the Board of October 27 and December 3,1980, the latter enclosing a letter to the parties from CBG dated November 6, 1980. CBG's November 6 letter enclosed the security contention substantially in its present fom. In its response of November 28, 1980, UCLA again opposed the security contention as lacking bases. Staff took a similar position in its December 1,1980, response. At a prehearing conference held February 5,1981, Staff took the position that the contention sought to apply power reactor standards to this reactor and that there was no requirement that non-power reactors protect against sabotage (See Tr. 377,394-95). In a prehearing conference order of March 20, 1981, the Board admitted Contention XX with a modification. Staff, on April 13, 1981, promptly moved for sumary disposition of this contention despite the fact that the schedule adopted by the Board

,i p, I did not permit such motions prior to the close of discovery. Dr. April 30, we ruled that this motion was premature, and on June 9 adhered to that ruling in response to Staff's motion for reconsideration. The ) efforts of the parties to agree on a protective order and nondisclosure agreement to safeguard sesitive information were unavailing' Hence 1 i discovery was not accompitshed. In our Prehearing Ccf ference Order of July 26,'1982, we directed CBG to respond to certain portions of Staff's motion which raised legal or factual issues which did not require that CBG be given access to sensitive infonnation. That response lead to our rulings in LBP-83-25A, 17 NRC 927 (1983) and LBP-83-67, 18 NRC (October 24,1983) that 10 CFR 5 73.40(a) requires that UCLA take some measures to protect against potential sabotage. Throughout these proceedings until February 15, 1984, we had been lead to believe by Counsel that, first, Staff saw no requirement in the regulations that UCLA provide such protection and imposed no such requirement, and second, that UCLA's security plan indeed provided no such protection. University wishes to note that its security plan, which is not designed to provide protection against sabotage, has been approved by the Comission's safeguards branch; and that the low-power university research reactor licensees have never been required to adopt security plans designed to protect against sabotage. Surely the Comission's consistent practice in interpreting and applying its own safeguards regulations to licensees such as University is entitled to considerable weight in this proceeding. University's August 25, 1983, Response in Support of NRC Staff Petition for Reconsideration of the Licensing Board's Memorandum and Order Ruling

L on Staff's Motion for Sumary Disposition, at 2-3. This document lists Donald L. Reidhaar, Glenn R. Woods, and Christine Helwick as attorneys for UCLA and is signed by William H. Cormier. In her petition for reconsideration of LBP-83-25A, dated August 15, 1983, Staff Counsel stated: The Board errs in believing that a general but unspecified requirement for protection against sabotage exists in 6 73.TDTa) which would provide ad hoc regulating authority to Staff and/or i Licensing Boards. TEit section clearly contains a provision for application of the requirement according to specific regulations applicable to the facility and SSNM of licensees. Since i 73.67 contains specific physical security requirements for fixed site licensees with SNM of moderate and low strategic significance, it is contradictory to assume that only a general unspecified requirement has been issued for protection against sabotage for the same licensees. (Emphasis in original) Petition at 10. In sum, f 73.40(a) merely states a general requirement for protection against sabotage according to specific regulations and security plans which are approved by the Comission. Licensees with low and moderate amounts of SNM are required to comply with i I 73.67 which does not, by its stated objectives, aim at protection against sabotage. The Comission's Staff has approved the UCLA security plan. The Staff has stated it does not view sabotage protection necessary for research reactors. (Carlson affidavit supra). Petition at 14. Following our ruling in LBP-83-67, UCLA's attorneys and Staff Counsel responded to our requests for views on the status of Contention 1 i XX. UCLA's attorneys stated: l ... the Board's interpretation of Sec. 73.40(a), as applied to the UCLA facility, is clearly inconsistent with the practice of those within the Comission who are responsible for interpreting and applying the Comission's safeguards regulations. University's Position Concerning Contention XX, December 13, 1983 at 2.

yp4;(, I i a p,. + g l Staff Counsel stated: .i Similarly the Staff's position, that no additional safeguards to protect against sabotage are requi for the reasons previously explained.-{gg for UCLA remains the same The Staff continues to believe the safeguards in place at UCLA are sufficient to protect { against both' sabotage and theft, even if 6 73.40(a) were applied. l ThisisingpcordwiththeAppealBoard'sdecisioninColumbia Universityg-where a security system of keys / locks /and alarms similar to that at UCLA was required for bot However, pursuant to the Board's suggestion,g7pabotage and theft. the Staff has forwarded 73.40(a).g the Comission a proposed clarification to i j l 15/ Staff advised the Board in the affidavit attached to its i motion for sumary disposition, that it does not view risk from sabotage at research reactors as significant. In its motion for reconsideration Staff indicated a study of risk from sabotage at research reactors had been perfonned which demonstrated that small reactors such as the Argonaut-UTR j presented no risk. i / Trustees of Columbia University, ALAB-50, 4 AEC 849, 855-856 16 i and Appendix (1972). j E/ Memorandum and Order, o_g. cit., p.11. / The Staff has proposed to the Comission for rulemaking, a 18 clarification to the rule to clearly indicate the established practice of evaluating security plans. The Staff will promptly notify the Board and parties of the Comission's decision on this proposal. NRC Staff Response to Board Order Concerning Contention XX, December 13, 1983, at 5. i The document referred to in footnote 18 of the Staff's response quoted above is SECY-83-500. It states: Staff's policy and practice has been to provide detailed l requirements in Part 73 that are sufficient to define the extent to which protection against sabotage or theft, or both, must be i addressed by specific classes of licensees. Therefore, if a licensee satisfies the detailed requirements in the section which applies to its specific class, the general requirement in Section 73.40(a) will be satisfied. This is the staff's practice even when the detailed requirements mention only theft or only sabotage as a n..

x. ( threat. Physical security plans are evaluated and approved on this basis. l There has been a long-standing policy that acts of sabotage are.not included in Section 73.67. The issue of physical i protection for special nuclear material of' moderate and low strategic significance (Category II/III) materials was first presented to the Commissioners in SECY77-79. Staff recomended that no specific protection measures should be required for i dispersion scenarios. 1 SECY-83-500 at 2. This theme is repeated on page 3 of SECY-83-500: 1 The threats of both sabotage and theft cited in Section 73.40(a) have not been applied to all types of licensees. The sections of Part 73 treating specific licensee classes have been ) ) used to define the necessary physical protection measures for each class. ( u It thus was clear to us, based on the representations of Counsel, that UCLA's physical security plan was not_ designed to provide protection against sabotage and that Staff did not require that such protection be provided. However, the security plan and security inspection reports furnished by.UCLA indicate that the opposite is true. We were astounded to read in the first sentence of the first paragraph of the text of UCLA's physical security plan that it was indeed the purpose of the plan to provide "... for the protection of i the reactor, protection of the staff and the general public against radiological sabotage and to prevent and detect theft of Special Nuclear Material." The general performance objectives of the physical security i system and ' organization, listed in the second paragraph of the text, include protection of the reactor, its equipment, and the SNM from acts of radiological sabotage. A perusal of the plan reveals several provisions which are aimed at providing such protection. It appears

(.' l L that it has been the purpose of the plan to provice such protection fror. 1 the time of its submittal to NRC on: March 10,.1980. I .We were even more estounded to find that every. Part 73 security L inspection report furnished by UCLA indicates that Staff did, in fact.. examine UCLA's activities related to physical protection against sabotage "in accordance with applicable requirements of Title 10 Code. of Federal Regulations, Part 73." The reports furnished are for the l years 1975 through 1979 and 1982. Moreover, on November 9,1983 Staff l amended UCLA's existing license to require UCLA to "... maintain and ' fully implement all provisions..." (emphasis supplied) of the physical security plan submitted March 10, 1980, as amended. Thus Staff formally required UCLA to take steps to provide for protection against radiological sabotage on that date. We have referred these matters to the Consnission's Office of Inspector and Auditor in connection with their ongoing investigation. In light of these revelations, we are confronted with the question whether Counsel may have violated Model Rules of Professional Conduct 3.1, 3.3, 3.4, and 8.4 and whether we should take action against Counsel pursuant to 10 CFR i 2.713. Prior to deciding these questions, we will afford Counsel an opportunity to demonstrate why such action should not be taken against them. Donald L. Reidhaar, Glenn R. Woods, Christine Helwick, William H. Cormier, and Colleen P. Woodheaa shall have until March 9, 1984, to file their responses. In addition, the Board wishes to know to what extent the written representations of these attorneys have been reviewed and approved by

F others within their respective organizations. The parties are reminded that 10 CFR 6 50.100 provides in part that "[a] license... may be revoked, suspended, or modified, in whole or in part, for any material false statement in the application for the license or in the supple-mental or other statement of fact required of the applicant...." The Regents of the University of California and the NRC Staff are to indicate, by March 9, 1984, the extent to which they were aware of the representations being made by counsel, whether they approved of these representations, and whether they sought to make any corrections to them. In its response, NRC Staff is to indicate whether any inspections i of this facility pursuant to 10 CFR Part 73 were conducted by it in 1980, 1981, and 1983. If such inspections were conducted, unexpurgated copies of the entire inspection reports are to be furnished to the Board only. It is so ORDERED. l .i THE ATOMIC SAFETY AND LICENSING BOARD ,.[ 7 s. u p,c. / : L.]. {', t.t /

• r'c Enuneth A. Luebke ADMINISTRATIVE JUDGE

?$- 0, l Glenn 0. Bright / ADMINISTRATIVE JUDGE N ~ 5 .c John.H f rye, III, Chairman (ADMIpISTRATjVEJUDGE Dated at Bethesda, Maryland, this 24th day of February,1984. ~_

1 E t others within their respective organizations. The parties are reminced that 10 CFR 5 S0. K 7 provices in part that "[a] license... may be revoked, suspended, or modified, in whole or in part, for any material false statement in the application for the license or in the supple-mental or other statement of fact required of the applicant...." The Regents of the University of California and the NRC Staff are to t indicate, by March 9, 1984, the extent to which they were aware of the representations being made by counsel, whether they approved of these representations, and whether they sought to make any corrections to them. In its response, NRC Staff is to indicate whether any inspections of this facility pursuant to 10 CFR Part 73 were conducted by it in 1980, 1981, and 1983. If such inspections were conducted, unexpurgated copies of the entire inspection reports are to be furnished to the Board only. It is so ORDERED. THE ATOMIC SAFETY AND LICENSING BOARD ,7 3 g w ( :L ..l. c ',t.t /.'e'c Emeth A. Luebke ADMINISTRATIVE JUDGE $$ - - 0, l Y I Glenn 0. Bright / ADMINISTRATIVE JUDGE s N John.H frye, III, Chairman (ADMIpISTRATjVEJUDGE Dated at Bethesda, Maryland, this 24th day of February,1984.

t UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of I i THE REGENTS OF THE UN!YERSITY OF Docket No. 50-142 CALIFORNIA (ProposedRenewalofFacility (UCLAResearchReactor) License) AFFIDAVIT OF DONALD M. CARLSON STATE OF MARYLAND ) COUNTY OF MONTGOMERY ) ss:

1. DONALD M. CARLSON, being duly sworn, do depose and state as followr.:

1. I am employed in the Division of Safeguards, Fuel Facilities and Safeguards Branch, of the Nuclear Regulatory Connission. The purpose of this affidavit is to respond to questions raised by the Atomic Safety and Licensing Boe.rd in its Memorandum and Order dated l February 24, 1984. I 2. The Board has raised the question whether Staff Counsel Ms. Colleen P. Woodhead, has accurately represented the Staff's positien on the safeguards regulations for nonpower reactors and whether the Staff knew and approved of her position. N' raw'E . Counsel has work,ed closely wlth me,st'nce T)bO_g2he_'.httte,r W1mc g , safeguards regulations and polici,es app ~1icidle'to'.' nims @jwir;iija.'c.torg facilitiesingeneral,andtotheiiCLAresearc'hr'saltiirIt$ l JutrticularI To my knowledge, Counsel has provided me with a copy of all legal pleadings and orders pertaining to the UCLA research $$'? ? !?jdQif fff ~~ t L._ _

.e - i 2 reactor security issue. In review of these documents I have found nothing which misrepresents e understanding of safeguards i regulatory requirements and policies. Had I found any infonnation ] which misrepresented y understanding, I would have sought to have I it brought before the Board by Counsel. In addition, the NRC Staff Petition for Reconsideration of the Licensing Board's Memorandum and Order Ruling on Staff's Motion for Summary Disposition, dated August 15, 1983, was distributed to other safeguards personnel, which included a manager and two supervisors, as well as the Deputy Chief Counsel, Regulations Division, ELD, by Counsel during a November 3,1983meetingwhichIattended.IassistedMs.Woodhead,{ along with other members of the Division of Safeguards by providing' technical information on safeguards regulatory requirmeents and { ' policies which she then used in. developing appropriate responses and explanations abou~t security issues in thI proceeding Therefore, I can freely state that the representation which Counsel made before the Board accurately represent licensing [ policies affecting the UCLA nonpower reactort 3. The Board bases its concern upon two sentences in the UCLA Security Plan which state that the plan has a purpose and general l performance objective of providing protection against sabotage. As the primary reviewer of this plan, I was aware of these statements and have some knowledge of the origin of the statements. In 1979, l l 1 was a Reactor Safeguards Analyst with the Reactor Safeguards Development Branch, Division of Operating Reactors, Office of Nuclear Reactor Regulation. To the best of g recollection, during the period from about April through mid-June 1979 I prepared, with l w

e ' \\ q L others, a draf t document entitled, " Sample Physical Security Plan for Non-Power Nuclear Reactor Facilities Possessing Special Nuclear Material of Moderate Strategic Significance." This draft plan contains statements of purpose and objectives to protect against sabotage. With Section 104 of the Atomic Energy Act in mind, this plan was drafted to aid r.onpower reactor licensees in providing unifonnity and completeness in the preparation of physical security plans to meet the requirements of the the impending 10 CFR 73.67 as understood by the writers of the draft plan ' After the sample j plan was drafted, it was sent by letter dated Agust 9,1979 to O several selected licensees for review and conment. (Emphasis added). 'A typical letter and the Sample Plan are enclosed. It is significant to note that the letter of transmittal clearly states the draft nature of the enclosure. Moreover, the draft nature, reflected by the request for comments, was intended to make clear that there was no requirement for a licensee to use the Sample Plan to meet the impending new requirement of 10 CFR 73.67 nor any of the older requirements of 10 CFR Part 73. The draft guidance was, overtaken by events and never became a guidance document issued by the NRC4 It appears that UCLA acquired a copy of the draft and, of their own accord, used it as a guide to prepare their plan to meet the requirements of 10 CFR 73.67. 4 It is unfortunate that the NRC Staff did not complete th( development of the draft and correct it by subsequently clarifying or correcting letters to licensees since sabotage protection was[

p / g ( deleted as a regulatory requirement. Nevertheless, it is true that, the draft document never became an actual guidance document. The r only official guidance document promulgated in conjunction with 10 C CFR 73.67 was Regulatory Guide 5.59.5 This Regulatory Guide, which does not contain any guidance on how to protect against sabotage, I l was provided to the Board on January 10, 1984. In spite of this. l the descriptive sentences concerning sabotage protection do appear l in the UCLA security plan as well as in plans of other nonpower reactor licensees. However, it must be understood that these. statements of purpose and objective do not alter or affect the reviewandevaluationofnonpowerreactorsecurityplanssincethef plans are reviewed only for compliance with 10 CFR 73.674 The 1980 L UCLA Security Plaf was never reviewed by me or any other member of l the Division of Safeguards for any specific sabotage protection 7 measure, e.g., entry searchef. The fact that the descriptive r sentences on sabotage appear [n the UCLA Security Plan is ( inmaterial and inconsequential from an NRC regulatory viewpoint.( . Based on the final promulgation of 10 CFR 73.67. I affinn the statement in my 1981 Affidavit presented to the Board, which was reviewed and approved by sy supervisors,'that there are no explicit ( .NRC regulations for the protection of nonpower reactors against [ radiological sabotag'e. I further contend that Commission Paper (SECV-79-38) clearly indicated that the Staff was not proposing to adopt measures to protect against sabotage and would not do so unless and until further. review and analysis indicated the need for 1 such measures. Moreover, the Federal Register Statement of j 1

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MEMORANDUM FOR: W. G. Martin, Chief Safeguards Branch, Regian I W. B. Kenna, Chief. Safeguards Branch, Region IT J. A. Hind, Chief, Safeguards Branch, Region III J. A. F. Kelly. Chief, Physical Security Branch, Region IV L. R. Norderhaug, Chief, Safeguards Branch, Region V FROM: Loren L. Bustr Acting Chief Physical Security Branch Division of Safeguards Inspection, IE

SUBJECT:

CHANGES IN FREQUENCY OF INSPECTION Attached are advanced copies of revisions to Enclosure 1 and 2 to MC 2685, to MC 2645, and Enclosure 1 to MC 2515. The above revisions discontinue inspections at non-power reactors and. reduce the frequency of inspections at power reactors, fuel cycle facilities and irradiated fuel shipments. The reduced schedules will remain in effect until the resources needed to pursue a more aggressive program are made available..It'is hoped that these resources will be available in FY 82. S e, - + oren L. Bush, Acting Chief Physical. Security Branch Division of Safeguards Inspection Office 'of Inspection and Enforcement

Enclosures:

As Stated Above cc: E. M. Howard W. B. Brown CONTACT: J. W. James (492-7077) 4

p UN;TE D STATES 3y ff[ j CLE AR REGULATORY COMMISS -( JM:t } 1 -v [

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.tv e m P.I!G ANDUv. FOR: J. Joyner, Chief, Technical Inspe: tion Branch, Region ! A. Gibsor., Chief, Technical Inspe: tion Branch, Region 11 ' W. Fisher, Chief, Technical Inspection Branch, Region III G. Brown, Chief, Technical Inspection Branch, Region IV L. Norderhaug, Chief, Safepvards Branch, Region V FROM: Willard B. Brown, Chief Safeguards Branch, IE:HQ

SUBJECT:

i ACTION PLAN FOR IMPLEMENTING NEW PHYSICAL PROTEC INSPECTION MODULES \\ Lawr2nce Livermore National Laboratory (LLNL) recently delivered the final drafts of the new physical protection inspection procedures. The reduced versions were provided to the regions by LLNL for issuance to each inspector. Training in the use of the modules is scheduled during j the month of June,1981. (See attached schedule and agenda). It is important that as many inspectors as possible attend a training workshop. Dr. October I,1982, upon completion of the training, the new modules will be exercised in the field during inspections of the various types of facilities. Time expended on the new modules will be reported using the number-letter combinations for the following replacement series: 81X00 fer 81100 series 81F00 for 81200 series 81T00 for 81300 series Although there is an upcoming change in the requirements for Categcry I non-power reactors, no new procedures were developed to accomodate the sr.all population of facilities that would be covered by the amendment to 73.67. Therefore, we will continue to use the existing 81400 series of procedures for Category I non-power reactors. For Catecory II and Category III facilities (non-power /research reactors included) report time expended using the 81N00 series. Please note that these procedures are completely new and a thorough review is required. New modules were developed tc inspect guard training and qualifications (BI5X0 series), contingency plans (8.16X0 series), and licensee implementing procedure evaluation (81 LOO series). Please report time expended in these areas using the above number and letter combinations. CONTACT: Joe James 49-27078 Alt 2 ??:! Y M.2y A_.---_-___--_____.-__-__----._-_____.

'; J ' Y 2 3133j ) J. Joyner, et al 'y December 1,1981, the Regions, having geir.ed experience from field i use, will sub7.it final comments on all recules to DSR51 for cor.sclidaticn and forwarding to LLNL. The final versions of the modules, with comments incorporated, will be delivered to DSRSI ir. December 1981, for incorporation inte the IE Manual Chapters. k'e are nearing the end of a long, tedious, tire consuming, and sometimes boring project. Numerous times during the course of this project you have been asked to review and comment on voluminous material in a relatively short period of tine. I realize that this task scretines taxed your inagi-nation, your resources, and probably your patience. H& sever, due to your thorough reviews and critical comments, I believe the end product will be the most comprehensive and useful set of inspection procedures ever developed. The contributions by your staff to this project are greatly appreciated. -A lf y,\\Q.')w.D % " Willard B. Brown, Chief Safeguards Branch, IE:HQ cc: H. D. Thornburg i 4 _____ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _}}