ML20244C916

Recommends Commission Affirm SECY-83-500 to Revise 10CFR73.40(a),general Physical Protection Requirement

ML20244C916
Person / Time
Issue date:	04/20/1984
From:	Dircks W NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO)
To:
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, TASK-RII, TASK-SE SECY-83-500, SECY-83-500A, NUDOCS 8405180013
Download: ML20244C916 (3)

Text

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' 3.5-yt:alf,5 RULEMAKING ISSUE (Information)

April 20,1984 SECY-E3-500A For: The ComT.issicners from: William J. Dircks Executive Director for Operations

Subject:

CLARIFICATION OF GENERI.L PHYSICAL PROTECTION. REQUIREMENT Purpose : To inform the Co . mission of certain information which has become known subsec.uent to the submittal of SECY 83-500

. and which is relevant to the preposal fer clarification of 10 CFR 73.40(a).

Discussion: In SECY E2-500 the staff stated that, since the aception of 10 CFR 73.67, there has been a policy that protection against acts of sabotage at nonpower reactors is not included in regulatory rec;uirements. This policy has been reflectec in a nu .ter of places. For ins ar.ce, the Feceral Register Notice publishing 10 CFR 73.67 as a final rule ( LFR4225C, July 24, 1979), in explaining the celetion of a recuire en- for entry searches, reacs, "The critary cbjective of er.- y seartres is c detec r.ateriais wnien could be use'vi in sabetage. Since prc:ettien acair.st sat:: age is .c: witt.in its sec;e cf t e ; reposed a anc-men s, an entry search recuire ent is not necessary."

Staf f also stated in SECY E2-500 that the general recuire-was satisfiec if a licenses et l r.ent of 10 CFR the cetailed 72.40(a)'ts in the section of Fart 73 which repuireien applied to its specific class. Fcr tr.e class cf licensees using or possessing special nuclear caterial of r.cderate or low strategic significance, including nonpewer reactor licensees, the specific section is 10 CFR 73.67.

CONTACT:

R. R. Rentschler, SGFF 427-4181 kV@SU GO S

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o Guicance refers c industrial satt: ace in. introductory

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prciec: against sabc: age or thef t, cr Octn.

o Some safeguards inspection modules, protecures and

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reports of inspection fincings for nonpower reactors do acdress sabotage protection.

o The introductory paragraph of a generic letter for transmitting reports of security inspections for all classes of licensees refers to protection against both industrial sabotage and theft of special nuclear material.

Nevertheless, it has been the intent cf the NRC staff to require nonpower reactor licensees, as well as all other licensees using or possessing special nuclear material of coderate or low strategic sicnifica :e, to reet only

he physical protecticn requirenen s cf 10 CFR 73.67.

Reculat:ry Guide 5.59, "S andard Ferma: and Center.: Guide for a Licensee Physical Security Plan for the Protection of Special Nuclear Material of Moderate or Low Strategic Si;r.ificance," was issued when 10 CFR 73.67 v.as acopied.

Alth:g;n -he intro:sc-ion :c this suics refers to protection against " industrial sabotage," the body cf the guice follows the fermat of 10 CTR 73.67 anc centains no specific recairements to prcvide pro ection against l' tage. Inis guide aas used by lice sees in ;reparing

- Sir plans te meet t e new rec.latic s. It was also use: ty the !J.C staff in review n; an: a::revi g :ne plans suenittec pursuant to these recula:icts.

To bring re;ulatory a::ivities in line with safeguards p:li:/,

staff has :egun tction te:

1. Inform ner.po,ter react:r licensees, :nrcuch SE:., tha; their plans were not reviewed against sabotage and that such measures are not required by the regulations.

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4 Correc. Rec.ula or.v Guide 5.E9, ne prir.ar.v c.uicance occumer.t for subti ting physitt1 security plans recuired by -10 CFR 73.57, c.y revising t*eintrccuctory paragraph--

which sum .arizes all 'of the regulatio s dealir.g with

. physical protection, to r.ake clear that the Guide dots '

.not address sabotage.

To complete efforts to rescive r.itur.cerstar.cirigs regarding current policy and procedures, it is important that the Commission affirm SECY 83 500 to revise 10 CFR 73.40(a)'.

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i.y JAN 12 lot)

Dr. Walter F. Wegst

• University of California i at Los Angeles .

Director of Research and l Occupational Safety Office of Environmental

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Dear Dr. Megst:

. . . Foliowing a site visit and review of your Physical Security Plan by N

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have detemined that the UCLA reactor operating and SNM storage sites are security requirements. As such the facility must implement interim Category I physical These requirements are currently cbnthined in 10 CFR Parts 73.67(a)(b)(c)(d) and 73.60.

In order to be exee:pt from the above requirements, the fuel in storage would have' to be shipped to another location or the reactor would have to be eperated at 3 feet from to maintain the fuelsurface.

any accessible irradiation level at a dose rate of.100 mm/hr (See 10 CFR 73.6(b) and 73.67(b)(1)(

By January 31, 1981, plan for co:pl,iance with this temporary adjustment.,please in

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' Projects Branch Division of Licensing

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.s UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of-THE REGENTS OF THE UNIVERSITY OF Docket No. 50-142 CALIFORNIA (Proposed Renewal of-Facility (UCLAResearchReactor) License)

AFFIDAVIT OF COLLEEN P. WOODHEAD STATE OF HARYLAND )

COUNTY OF MONTG0HERY ) ss: 1 1

I, COLLEEN P. WOODHEAD, being duly sworn do depose and state:

1. My name is Colleen P. Woodhead. I am employed by the Nuclear Regulatory Commission as a senior litigation attorney in the Hearing Division,Section IV, of the Office of the Executive Legal Director.

2. On or about November 28, 1980 I was assigned to the proceeding which began February 25, 1980, to consider the application for the second license renewal for the Argonaut-UTR at the University of I California at Los Angeles (UCLA). My first action in the proceeding was to forward to the Board and parties, the stipulation of contentions agreed by my predecessor NRC Staff Counsel in the proceeding and the representatives for UCLA and the intervenor.

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l l g .. I l~ 3. .The purpcse of this aff1cavit is to respond to the charges made l against me by members of the Atomic Safety and Licensing Board assigned to the UCLA proceeding contained in their Memorandum and

. Order issued February 24, 1984. The Board rests its charges on (a) two statements of. purpose in the UCLA security plan which state 4

that the intent-of the plan is to provide security against radio-logical sabotage and (b) OIE, Region V cover letters transmitting safeguards inspection reports to UCLA indicating inspections were 1

made of security against sabotage and theft according to applicable provisions of Part 73. On the basis of these statements, the Board- I questions whether I have misrepresented NRC Staff in pleadings, briefs and arguments submitted to the Board wherein I have asserted that there are no regulatory requirements for protection against sabotage  !

for nonpower reactors and represented that this is and has been NRC Staff position and practice.

4. In sumary response to the Board's accusations, I answer that none ,

of my representations to the Board concerning safeguards regulations I were based on, or even considered, the contents of the UCLA security (

plan or DIE cover letters to UCLA, since only the Part 73 regulations t

'were at issue.t All pleadings addressed the 1981 Staff's Motion for Summary Disposition of Contention XX, which asserted that the  ;

allegations in the contention were an impermissible attack on Part 73 regulations. Indeed, until the Board's Order of February 24, 1984,

'I was unaware of the apparently contradictory language in the securityi

. plan and Region Y cover letterI. Further, all pleadings I have filed

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. 3 and arguments I have made on the matter of Part 73 regulations have been supported by documents written and issued by the NRC Staff and the Comission.

5. In brief explanation of the statements referenced by the Board, the following facts', attested by accompanying affidavits of NRC Staff, are provided: (1)thedereriptivesentencesintheUCLAsecurity. plan i

exist (Qe to an incorrect statement of purpose provided to licensees in a draft sample security plan sent to some NPR licensees for coment in 1979, prior to final development and issuance of 10 CFR I 73.67; (2) the statement of purpose and objectives in the UCLA security plan does not detemine the nature of the actual provisions of the security system, nor does it determine the requirements of the regulations. The Safeguards Staff reviews proposed security -

plans for actual security measures for compliance with applicable Part 73 regulations. Since the Safeguards Division personnel were aware of the origin of the descriptive language, they considered it i

insignificant. (3) The cover letter used by OIE Region V Safeguards Section, sent to VCLA, is used for all licensee inspection reports so that the reference to security against sabotage and theft according to applicable sections of Part 73 is intended to include all Part 73 requirements for all licensees.

6. In addition to the above explanations, the Board's Memorandum and Order quotes sections of SECY 83-500 which was written by the NRC Division of Safeguards and sets out in full, the same representation o - . . . ~

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of the regulations and Staff view which I have presented to the Board and documented with Staff SECY documents and Comission Statements of Consideration issued over the years 1977-1979 con-cerning sabotage protection requirements for NPRs. The documentary evidence I have provided to the Board for three years proves, I believe, that my representation of NRC Staff in this proceeding has {

been wholly accurate, and in accord with the position of the NRC j

Staff. The accompanying affidavits by NRC personnel in the Division of Safeguards, Office of the Executive Legal Director, and Region V l confirm the accuracy of my representation of the facts and the law, as viewed by the NRC Staff, before this Board.

7. Throughout these proceedings I have submitted numerous Staff and  !

Comission documents written and issued during 1977-84 to demonstrate the Staff and Comission decisions concerning sabotage protection regulations for NPRs.

I did not write these documents. The record in this proceeding is replete with documents on which I based my representations about the regulations to the Board. I did not prepare those documents. They were written by cognizant NRC Staff offices. In fact, the original position I espoused was based on affidavits of two members of HRC Staff from two different Offices within the Nuclear Regulatory Commission.

8. Since the actual contents of the UCLA security plan were not at  ;

issue in this proceeding until the Board's February 24,1984, Order. l I made no representations about the security plan contents other

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than stating the security pian was approved by the Division of }

Safeguards Staff as adequate to meet the i 73.67 requirements. I i

9. As explained-by affidavit of Mr. Carlson, the reason the descriptive sentences concerning radiological sabotage appear in the plan is due to similar language in a draft " Sample Physical Security Plan for l

Hon-Power Nuclear Reactor Facilities Possessing Special Nuclear i Material of Moderate Strategic Significance" Rev.1., dated June 14, 1979, attached to Mr. Carlson's affidavit. This draft guidance was written by the Reactor Safeguards Development Branch, D0R and sent to some NPR licensees on August 9,1979 for coment. Unfortunately this descriptive language concerning " purpose" and " objective" was incorporated by some NPR licensees in security plans which followed l

the sample plan. However, as Mr. Carlson explains, the Staff does not evaluate security plans in light'of stated purposes but for compliance with applicable regulations by actual provisions of the security system.

10. In light of the Board's repeated references to Staff and Comission documents, I do not understand why the Board concludes that Staff and UCLA counsel alone represented to the Board that the UCLA security plan does not, and is not required to protect against sabotage. In light of documents issued by the Comission and sent by the Staff to the Comission referenced by the Board Order at pp. 5-6, I am at a loss as to what further evidence could be offered 1

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I to the Board to demonstrate that I have accurately represented the ]

NRC Staff.

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11. The language in the cover letter from OIE Region V Safeguards Branch referenced by the Board indicates that an inspection has been l performed for protection against sabotage and theft according to applicable provisions of 10 CFR Part 73. As explained by Affidavits of L. Norderhaug, Chief, Safeguards Branch, NRC Region V, and Matthew D. Schuster, Chief of the Security Licensing and Emergency Preparedness Section, Region V, this cover letter is used for all licensees, whether of power reactors, fuel facilities, or NPRs.

Because of this, the standard cover letter does not demonstrate anything except that inspections are made according to applicable Part 73 regulations.

12. Insofar as the Board questions the extent to which my briefs and pleadings addressing security matters have been reviewed within the Office of the Executive Legal Director (OELD), the Board is hereby informed that, without exception, every pleading filed by me in this proceeding has been reviewed and approved by the appropriate Assistant Chief Hearing Counsel and the Chief Hearing Counsel. OELD. See:

Affidavit by Joseph R. Gray, Assistant Chief Hearing Counsel. OELD, Hearing Division,Section IV. In the case of pleadings explaining the safeguards regulations, I have also submitted my pleadings to Mr. Robert Fonner, now Deputy Chief Counsel of the Regulations Division, OELD, for review and concurrence.

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13. In response to the Board's question as to whether the Safeguards Division knew and approved of my representations to the Board, I  ;

answer that I have worked closely with several members of the Safeguards Division for four years by careful inquiry about the Staff position on all security issues raised in the proceeding. I have provided them with copies of each pleading I filed, and with every Board Order relevant to safeguards matters. See: Affidavits of Donald M. Carlson, Russel Rentschler Donald J. Kasun, Charles K.

Nulsen, Jr., Fuel Facility Safeguards Branch, Division of Safeguards.

In addition, I have provided Region V Safeguards Branch with pleadings t

and Orders over the years which related to safeguards matters as" attested by the Region V. Chief of Safeguards. In sum, my repre-

, sentations in this proceeding have been based solely and completely on the Staff position provided to me by the Staff who have been fully informed of every pleading, conference, or order relating to their area of responsibility. Beyond this, it is routine office procedure to send to the licensing project manager in NRR, a copy of every document filed by OELD concerning the reactor under his or her licensing management. Thus, not only the Safeguards Division, but also NRR, through the Staff project manager, has been provided with and was aware of all pleadings filed.

14. Of foremost significance is the Board's reference to SECY-B3-500.

. This document was written by the Staff of the Division of Safeguards, Office of Nuclear Material Safety and Safeguards (NMSS), and was signed by the Director of the Division of Safeguards who then

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I forwarded it to the Director of NM55. After obtaining the review and concurrence of NRC Offices and Regions, the document was sent to the Executive Director for Operations, who submitted it to' the Office of 1

l the Secretary of the Comission. In demonstration of this fact, I have attached to this affidavit, along with the concurrence letter for SECY 83-500, the original draft proposal for rule clarification, signed by the Director of the Division of Safeguards, NMSS, with concurrences of the NRC offices. 1

15. 7ECY 83-}00 sumarizes the Staff's longstanding position regarding

• sabotage protection requirements for NPR's, as I have presented ~

• 1t to the Board by pleadings.and documentation, which included the T  ;

'WRCStaffdocumentsreferencedinSECY83-500.I l

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16. In sumary, the proposed rule amendment contained in SECY 83-500,  ;

referenced by the Board, would make clear that i 73.40(a) is not intended to require specific safeguards protection for nonpower reactor licensees, which is the exact view I explained to the Board  !

in representations of the Staff's position. .The Staff and Comission I documents referenced by the proposed rule clarification are those on l which I based the August 1983 Petition for Reconsideration by reference and attachment. I believe that the record in this proceeding has

'r contained abundant evidence since August 1983 which demonstrates the dicy a./ view of the Safeguards Staff, presented to the Comission since 1977 concerning sabotage protection requirements for NPRs. These i documents demonstrate the accuracy of my representation of the Staff I

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i anc the Connissior. judgments'on this matter, contained in the

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Federal Register Notices provided.

17. In addition to verifying documents provided to the Board in August

, 1983, I provided to the Board five additonal documents written by I

the Safeguards Staff in support of the NRC Staff Response to Board Order i

to Respond to CBG's Allegations of Material False State:nents  !

served , January 10, 1984. This document also refers to Staff and Comission documents. Each of the documents provided on January 10

.- 1984 contains views of the NRC Safeguards Staff and demonstrates that my representations to the Board concerning safeguards regulations

, have been based on and are accurate reflections of the Staff viewpoint, policy and practice on the matter of sabotage protection requirements for NPRs. These documents were written by or address s':tions by the Safeguards Staff. I did not write these documents nor i

participate in the formulation of Staff policy. I view these l Staff originated documents attached to pleadings I fil&d, as uncontroverted proof of the Staff position which I have presented  !

as Staff Counsel.

18. In sumary, the Board's allegations that misrepresentation and/or material false statements occurred, based on two descriptive sentences in the UCLA security plan, and general language in a i #

standard-fonn cover leter for all licensees used by OIE, is not grounded on the record, which contains substantial evidence that it i

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t is the established Staff view which I have been accurately representing in this proceeding.

19. Because of the Board's referral of the charges noted in its Order totheOfficeofInspectorandAuditor(OIE), representative from OIA questioned me for two hours on February 22, 1984. However, I did not receive the Board's February 24, 1984 Memorandum and Order until February 27,1984 so that at the time I was interviewed by the OIA representative, I was totally unaware of the Board's accusations.

The first notice I received of these accusations occurred late on the afternoon of February 24, 1984 when I was visited by a member of j the NRC Office of Public Affairs who had received a personal copy of the Board's Order, and who wished to inquire about the accusations.

Consequently, I was questioned by two members of NRC prior to notice to me by the Board of its assertions. I feel that the Board's accusations unjustly place a cloud on my professional and personal i conduct and reputation. While I regret that the language in the security plan and OIE safeguards inspection report transmitt0  ;

letters that gave rise to these accusations, has raised the  !

questions that it has, my conduct in this proceeding has been entirely proper. It is my hope that the Board will correct this situation and dispel the cloud on my professional conduct raised by the Board's February 24, 1984 Memorandum and Order. $ harLA&Aurs th4

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poard tha't honesty, it and Ts'%eenM'65it,'M$oMard p'r~incipleg p personal and professional life.I G O i

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I attest that the foregoing is true and correct to the best of my knowledge and belief.

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Colleen P. Woodhead Subscribed and sworn to before me this @ day of March 1984.

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Notary'

)ublic T My comission expires:~1.Nkb

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