ML22230A162
| ML22230A162 | |
| Person / Time | |
|---|---|
| Issue date: | 03/16/1978 |
| From: | NRC/OCM |
| To: | |
| References | |
| Tran-M780316 | |
| Download: ML22230A162 (1) | |
Text
NUCLEAR REGULATORY COMMISSION IN THE MATTER OF:
SECY-77-611B DRAFT AMENDMENTS TO THE ATOMIC ENERGY ACT ON THE PROTECTION OF SAFEGUARDS INFORMATION AND RELATED MATTERS Place - Washington, D. C.
Date - Thursday, 16 March 1978 Pages l _ 30 Telephone:
(20:? ) 347-3700 A.CE* FEDERAL REPORTERS, INC.
Ofticia.i Reporten
.d..U. North Capitol Street Washington , D.C. 20001 NATlONWIDE COVERAGE* DAILY
DISCLAIMER This is an unofficial transcript~ meeting of the Unfted States Nuclear Regulatory Commission held on 711ct.h...,cL )~ 1 19//a in the Commission's offices at 1717 H Street, N. t,J., v/ashing7ton, D. C. The meeting was open to public attendance and observation. This transcript has not been reviewed, corrected, or edited, and it may contain inaccuracies.
The transcript is intended solely for general informationa1 purposes.
As provided by 10 CFR 9. l 03, it is not pa rt of the forma 1 or i nform,-.J record of decision of the matters discussed. Expressions of opinion in this transcript do not necessarily reflect final determinations or beliefs. No pleading or other paper may be filed \1ith tile Commission in 1
any proceeding as the result of or addressed to any statement or a.rg~1ment.
contained herein, except as the Commission may authorize.
1 CR 6792 UNITED STATES OF -A,.\IBRICA WHITLOCK All 2 NUCLEAR REGUIJATORY COMMISSION 3 SECY-77-611B
- 4 5
DRAFT AMENDMENTS TO THE ATOMIC ENERGY ACT ON THE PROTECTION OF SAFEGUARDS INFORMATION AND RELATED MATTERS 6
7 Room 1130 1717 H Street, N.W.
8 Washington, D.C~
9 ~hursday, 16 March 1978 10 11 The Co:rnittission met, pursuant to notice, at 12 9:40_ a.m.,
- 13 14 15 BEFORE:
VICTOR GILINSKY, Acting Chairman PETER BRADFORD, Commission 16 ALSO PRESENT:
17 H. SHAPAR
- s. CHILK 18 w. PARKER L. GOSSICK 19 w. REAMER G. SNYDER 20 G. MCCORKLE E. CASE 21 J. KELLEY
- 22 23 24 Ace-Federal Reponers, Inc.
25
2 P R O C E E D I N G S 2 (9:40 a.m.-)
3 COMlUSSIONER GILINSKY: Very :well.
4 Why don't we go on to the next item.
5 Howard, you will handle this?
6 MR ... SHAPAR: Yes.
7 This is SECY-77-611B, draft amendments to the 8 Atomic Energy Act on the protection o*f safeguards information 9 and related matters.
10 To review the bidding briefly, you recently saw 11 a very close counterpart of this legislation discussed at 12 a Commission meeting. I believe you weren't there, Mr.
- 13 14 15 Gilinsky .
COMMISSIONER GILINSKY: That's right.
MR. SHAPAR*:.* -- at that meeting.
16 Essentially, the legislation is part of a much 17 broader picture. Generally, our program for upgrading safe-18 guards and protecting safeguards information; the legislation 19 is intended to protect safeguards information without classi-20 r fying - it, and to approve the legal and statutory**provisions 21 of the Atomic Energy Act with respect* to protecting access to 22 sites where licensing activities are carried on. ,
23 In terms of protec'ting 24 COMMISSIONER GILINSKY: When you say not classi-Ace-Federal Reponers, Inc.
25 fied, do you mean not have i t subject to Executive Order?
3 MR. SHAPAR.: That's correct.
2 COMMISSIONER GILINSKY: In other words, not pro-3 tected ..--
- 4 5
6 MR. SHAPAR: *. In other words, they will protect it under the legislation without classi£ying the information, not relying on the Executive Order but relying on these new 7 provisions.
8 COMMISSIONER GILINSKY: Classification being a 9 term of art, .which applies to --
10 MR. SHAPAR: To the Executive Order that you just 11 . mentioned.
12 COMMISSIONER GILINSKY: 1165?
- 13 14 15 MR. SHAPAR: Yes.
With respect to the protection of the information, I think there are three points or phases where it needs to be 16 protected.
.17 And that is, from disclosure under the Freedom 18 of Information Act; 19 Second, during the hearing process; 20 And thirdly, while the information is in the hands 21 of licensees anq others~who might have access to safeguards 22 information.
23 I think it is also important to keep in mind that 24 you do have a pending rulemaking proceeding involving clear-
, Ace-Federal Reponers, Inc.
I 25 ance of people who have access to significant quantities of
2 The proposed rule is out. The Conrrnission *decided 3 there will be a hearing on that proposed rule. If the Com-
- 4 5
6 mission should . decide to. go along that route, you in effect will have a program where you .
will . be clearing people, under existing authority, who will have access to significant quant-7 ities of special nuclear materials.
8 Now, during the last discussion of this legisla-9 tion, the Commission agreed that they wanted to consider it 10 further--*and asked me to refine it somewhat to .be more precise 11 about the kinds of safeguards information that we were talk-12 ing about.
- 13 14 15 And they wanted to make sure that :~the legislation would cover*materials *in transient, as well as materials at fixed sites, and inf_ormation relating thereto.
)
16 And they wanted, as a result of the di15cussion 17 with Commissioner Kennedy, they wanted the pros and *cons dis-18 cussed, of having the legislation rest only on health and 19 safety grounds or on health and safety and the common:de-20 fense of security grounds. The paper discusses the pros and 21 cons of each.
22 Our recommendation is that the legislation ought 23 to rest on both common defense and security grounds and health 24 and safety matters, both.
Ace-Federal Reponers, Inc.
25 I think those are the main elements of the paper.
5 I would be pleased to answer any questions you 2 might have.
3 I think there is agreement on the paper now, as 4 drafted. I think it is responsive to what was requested of 5 the Staff at the last meeting.
6 (Pause.)
7 COMMISSIONER GILINSKY: You have me at a disad-8 vantage, Howard.
9 Let me ask you: On our clearance rule; that applie 10 to, as it is framed,*-to both reactors and fuel facilities?
11 MR. SHAPAR: Yes.
12 COMMISSIONER GILINSKY: So it is an across-the-13 board rule?
14 MR. SHAPAR: An across-the-board rule.
15 COMMISSIONER GILINSKY: And that is the wav you 16 framed your proposal for controlling information?
17 MR. SHAPAR: Yes.
18 COMMISSIONER GILINSKY: Peter, do you have any-19 thing?
20 COMMISSIONER BRADFORD: No.
21 I gather that OGC is not fully comfortable with 22 the draft. And maybe we ought to ask them to --
23 MR. KELLEY: I don't think it is true of the 24 draft. I think we did get together and concur on language.
Ace-Federal Reporters, Inc.
25 In terms of comfort, Phil Reamer, who has really
done the work on it, is supposed to be on his way up.~
2 Oh, he is here.
3 Come on up, Phil.
- 4 5
6
- (Pause . .)
MR. REAMER: We pointed out in our paper to Howard) certainly points that he was quite aware of, too; which is 7 that the legislation as drafted was broad in certain areas; 8 It covered, for example, source material., in sug-9 . gesting authority, in providing authority for a clearance 10 program.
11 And we felt that some of the areas in which.the 12 legislation was broad might be closely scrutinized by the
- 13 Congress, and that we should be prepared to provide justifica-14 tions for it; our request for (inaudible).
15 COMMISSIONER GILINSKY: Howard, it has been a 16 little while since we have covered this point. I wonder if 17 you can just sort of run over it, the main points of the 18 proposal, just how broad it is?
19 MR. SHAPAR: Yes.
20 As I indicated earlier, it covers access to mat-21 erials and there is an existing provision which-we have im-proved upon, we think, which would enable us to require clear-22 23 ance people who would have access to materials.
24 It would also provide protection.
Ace-Federal Reporters, Inc.
25 COMMISSIONER GILINSKY: In what way does it improve
7 that one, because that we have.
2 M:R. SHAPAR: Well, we have it but it is in terms 3 of access to significant amounts of special nuclear materials,
- 4 5
6 only.
COMMISSIONER GILINSKY:
MR. SHAPAR:
Yes.
And as drafted, +/-t*..,.would not apply 7 to people who were not licensees. In) other words, it would 8 apply only to licensees as such.
9 COMMISSIONER GILINSKY: Well, would anyone other 10 than a licensee have access to the materials?
11 MR. SHAPAR: Well, there:'.is the transient situation 12 is one example I can think of.
- 13 14 15 COMMISSIONER GILINSKY:
MR. SHAPAR:
I see.
Klso, it rests solely -- this is the more important point -- it rests solely on the common 16 defense and security, and there have been some questions 17 raised in the past about whether or.not:that would really cove 18 sabotage.
19 COMMISSIONER GILINSKY: How does the present 20 legislation restrict its licensees? Does it specifically say 21 licensee employees, or 22 MR. SHAPAR: Well, there are court cases that 23 indicate that any regulation that you impose pursuant to a 24 statute, unless the statute is unambiguously clear, that it I
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25 applies to people *other than those who are licensed by the
8 Commission, that there is a doubt about it.
2 It is those line of cases that we are trjing-to 3 address.
- 4 5
6 COMMISSIONER GILINSKY: But the legislation merely speaks of access to materials.
MR. SHAPAR: The way it is written now; access to 7 significant quantities of special nuclear materials.-
8 COMMISSIONER GILINSKY: Right.
9 But you regard that as restricting, as a restric-10 tion which would apply only to licensees?
11 MR. SHAPAR: Yes, based on case law and other areas.
12 I would say generally that unless the statute makes our I
- 13 14 15 authority specific, very specific,with respect to get at people other than those who have a license, there is a ques-tion about our authority to do so, and it stems from a case 16 involving the Eniwetok proving grounds.
17 COMMISSIONER GILINSKY: So you are in a sense 18 bolstering that authority, to clearly apply to anyone who 19 has access to the material?
20 MR. SHAPAR: Right, plus resting it on health and 21 safety grounds, as well as common defense and security 22 grounds.
23 COMMISSIONER GILINSKY: And what is the advantage 24 of that?
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25 MR. SHAPAR: Well, it would make clear our
9 authority against sabotage.
2 It also, I should add, makes it clear that sabotag~
3 is specifically covered.
4 COMMISSIONER GILINSKY: So you regard sabotage 5 in some ways as being closer to health and safety?
6 MR.SHAPAR: Yes.
7 COMMISSIONER GILINSKY: And stealing material for 8 possible use as explosives, closer to common defense*and 9 security.
10 MR. SHAPAR: : A.:.number of questions we had were:
11 How is it really related to common defense and security if 12 someone sabotages a nuclear power plant. And I remember we
- 13 14 15 had discussions about whether or not you could use a rationale to the effect that the power is delivered to a defense base.
We think we could make out a case, but it is not the --
16 COMMISSIONER GILINSKY: Now, when you talk about 17 sabotage, you mean sabotage that would cause harm to.those 18 outside the facility?
19 MR. SHAPAR: Yes, indeed.
20 COMMISSIONER GILINSKY: Rather than economic 21 loss?
22 MR. SHAPAR: Yes. That's why we think it is better 23 and safer from a legal standpoint to have it rest on both 24 common defense and security and health and safety~
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25 COMMISSIONER BRADFORD: It does refer, .I gather,
10 from the OGC memo, to sabotage of any type.
2 MR. SHAPAR: That's right, because there is a 3 history of AEC and NRC activities indicating that rules are 4 directed at industrial sabotage, but not at the acts of an 5 enemy agent, pursuant to the so-called Siegel case that hap-6 pened several years ago.
7 We want to make it clear that in terms of our 8 ability to. protect access and to protect the:'.information, we 9 really don*':t care whether or not the sabotage is done by a 10 so-called enemy agent, or whether it is done by somebody in-11 side the plant.
12 If you are going to have a complete and effective e, 13 14 system of protection, I thinkve need to get at both.
COMMISSIONER GILINSKY: And, let's see: How do 15 you get to the information, how do you get to protecting 16 information?
17 MR. SHAPAR: By Section 1.47.and it would protect 18 it in the three phases that I mentioned in my introductory 19 remarks and provide a solid legal basis for protecting it 20 under the Freedom of Information Act.
\,..[ --~Q_..,.
\J~L ,I 21 We anbther section that makes it clear that in 22 the hearing process itself that we would adopt the framework 23 of Section 1.81 of the Act and say that yes we can protect 24 it, but we will protect it with a minimum impairment of the Ace-Federal Reporters, Inc.
25 rights of the parties to the proceeding, which is exactly the
11 same principle which would be applied to the information, even 2 if it were- classified.
- 3 And then there is the phase of protecting it while
- 4 5
6 it is in the hands of the licensees or others. And we want to be sure of our statutory authority to promulgate rules that would fully protect the information under those circum-7 stances.
8 COMMISSIONER GILINSKY: And how do you define the 9 categories of information?
10 MR. SHAPAR: This is one of the areas where we have 11 changed the draft from the version that you saw earlier.
12 It is unauthorized disclosure of information relating to the 13 control, accountability and physical protection against theft, 14 diversion, or sabotage of any type, of special nuclear mat-15 erials, source or by-product materials, whether in transient 16 or at fixed sites, which requires a Commission license.
17 And I should add; there was an important sentence 18 that was in there before:
19 "This information may include information 20 pertaining the security plans and plant equipment 21 used in the protection of such materials and facili-ties against theft, diversion or sabotage of any 22 23 type."
24 I am sorry; that was added.
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25 But then the key thing is:
12 "The exercise of the authority in this 2 paragraph shall require a judgment of the Commis-3 sion that the unauthorized disclosure of such
- 4 5
6 information could adversely affect the health and safety of the public, or.the common defense and security by facilitating theft, diversion or 7 sabotage of any type,of such material, or such 8 facility."
9 COMMISSIONER GILINSKY: Why do you need the source 10 material in there?
11 MR. SHAPAR: Well, remember, we are resting it on 12 both heal th and .safety and common defense and security
- 13*
14 15 grounds.
if we COMMISSIONER GILINSKY: Well, you are saying that spilled yellowcake, or something, it is harmful to the 16 public?
17 MR. SHAPAR: I remember some people in Colorado 18 getting quite excited about the spilling of yellowcake.
19 COMMISSIONER GILINSKY: Yes, but there we are 20 really overlapping with a lot of other materials. And one 21 wonders whether this kind of regime is appropriate.
22 MR. SHAPAR: Well, we made a couple of other 23 points. The first effort to expand l.6l~I(2) in 1968 was 24 -- would have covered source material. That effort died in Ace-Federal Reporters, Inc.
25 the 0MB because presumably it wasn't pushed.
13 And ,the Nonproliferation Act signed by the Presi-2 dent includes source material and nuclear materials and 3 equipment which have safeguard significance.
- 4 5
6 So we are not breaking into a new field, plus the fact that I mentioned first, that we are talking about not just common defense*and security, but we are talking about 7 health impacts on the public.
8 COMMISSIONER GILINSKY: Well, are you then saying 9 that information relating to mills.* would then be subject 10 to classification?
11 MR. SHAPAR: I think you raised a good p6iJ.nt, but 12 it is hard when you are dealing with statutes to be able to
- 13 14 15 foresee all the possibilities of malicious attempt to steal material or to misuse it.
COMMISSIONER BRADFORD: Would stealing come under 16 the heading of sabotage?
17 MR. SHAPAR: No, but it would come under .theft 18 or diversion.
19 COMMISSIONER GILINSKY: Well, but you know, here 20 you are getting into the sort of the run-of-the-mill indu-21 strial problem that you have in all industries. And it seems 22 to me that one of the advantages of going the statutory route 23 was to create a precedent for extension of classification 24 which you might have if you simply extended the Executive Ace-Federal Reporters, Inc.
25 Order, extend the application of the Executive Order by saying
14 that the national security is involved.
2 And that could easily extend further. through ad-3 ministrative means and there didn't to be any clear obstacles
- 4 5
6 to it.
Whereas, being forced to_ go up to the Congress and get a specific change in legislation creates a certain sort 7 of hurdle we have to cross, and you couldn't easily extend 8 that sort of review to many industries.
9 MR. SHAPAR: Well, I think there 10 COMMISSIONER GILINSKY: And by catching in this 11 effort, matters which are really not all that different from 12 those in other industrial areas, I wonder whether we are
- 13 14 15 losing that advantage.
MR. SHAPAR: Well, let me say that in terms of --
COMMISSIONER GILINSKY: Do you understand what I 16 am saying?
17 MR. SHAPAR: Yes, I do.
18 I will say several things. Number one, in terms 19 of the overall breadth of this legislation, whether or not 20 source material is covered, I don. 1 .t*.suppose would be a--*major 21 point. I mean, it is going to be a pretty controversial 22 piece of legislation. I don't want anybody to be deluded 23 on that score. This is very broad-ranging legislation.
24 And whether or not source material is involved or Ace-Federal Reporters, Inc.
25 not, I don't think will be one of the more controversial
15 aspects.
2 Beyond that, we found out through experience that 3 by narrow drafting we have run into trouble restricting it
- 4 5
6 to common defense and security, restricting to significant quantities of SNM, not making it clear that we wanted to hit people that were not just licensees.
7 It seems to me there is a lesson to be learned 8 here.
9 And more importantly, the fact that you have got 10 authorizing legislation doesn't mean that you are going to 11 use the full scope and sweep of that legislation. I find 12 that based on experience, that in terms of drafting legisla-
- 13 14 15 tion of this type, that you simply cannot foresee all of the situations involved.
And since it is so broad anyway, in terms of 16 applying both to health and safety and common defense and 17 security, applying to by-product material as well as SNM, 18 throwing in source material, particularly since the Nonpro-19 liferation Act mentions it as a safeguardable material, is 20 not an undue extension.
21 If it bothers you, I would be perfectly happy to 22 delete it.
23 COMMISSIONER GILINSKY: Well, I guess my feeling 24 is that it ought to be as narrow as possible, because well; Ace-Federal Reporters, Inc.
25 I think it would be useful to keep the classification or the
16 information control regime as small as possible.
2 Peter?
3 COMMISSIONER BRADFORD: Howard, how do you see 4 the legislation bein~ applied -- or let me just ask you a 5 couple of specific situations:
6 Would it, for_example, relate to the p;I.ans for 7 shipping that apply,**.to source material; yellowcake, or say 8 something more significant, say highly enriched uranium; 9 could ,one keep*; the information as to what airports were being 10 and what time, what have you --
11 MR. SHAPAR: It would be broad enough, in my 12 opinion, to do that. If it is in terms of- -- remember, the
- 13 14 15 overall,* *overriding qualification is that the judgment of the Commission ii; that the unwarranted _disclosure of such inform-ation*could adversely affect the health and safety of the 16 public and the common defense and security, by facilitating 17 theft, diversion or sabotage of any type.
18 And the other qualification is it is going to be 19 information relating to the control, accountability and 20 physical protection against theft, diversion or sabotage of 21 any type.
22 So if it meets those qualifications, you could e, 23 do it. You don't have to do it, though.
24 COMMISSIONER BRADFORD: I guess since 'I have been I
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25 here I have gotten used to hearing the phrase, material
17 control and accounting as if it were one word. What is the 2 difference between controL:and accounting.
3 MR. SHAPAR: I think I would defer to my betters on 4 that one. Is there somebody from NMSS here?
5 MR. MCCORKLE: Material control actually has 6 two different aspects. One of them, of course, is material 7 containment. We control access to it by internal mechanisms 8 as to how people can get to that material; dm:*Other words, 9 the two*-man rule; entry to the vault, things of this nature.
10 The term material control and accounting is a gen-11 eric term which encompasses accounting and also they are 12 tracing from within a material access area of material from 13 one item control area to another area, froni*an MDA to another 14 MDA.
15 So, actually there*are two types of materials 16 control.
17 COMMISSIONER BRADFORD: If you wanted,' for example, 18 not to disclose the airports beings used for HEU shipments, 19 could you fit that within materials control and accounting
- 20 or physical security.
21 MR. MCCORKLE: Physical security. And that 22 aspect is containment of the material, in other wprds, an 23 exclusion *.area for access to only authorized personnel in the 24 immediate vicinity of the material.
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25 COMMISSIONER BRADFORD: I can understand how you
18 can withhold the guarding arrangements and what have you.
2 You can withhold the time as well, place.?
3 MR. MCCORKLE: That's right -- the time and 4 place, well, of course, at the present time, we use scheduled 5 for exports, for example, the only_air shipments we have 6 right now are scheduled commercial aircraft, nonstop *-.to the 7 overseas destination.
8 As far as the arrival of the material for loading
,9 onto the aircraft is concerned, we have to have a cushion.
10 In other words, we will bring .down a truck, so we schedule 11 the truck to come in a few hours earlier.
12 COMMISSIONER BRADFORD: I understand all that; 13 14 15 I am wondering if -:- well-, I don't necessarily understand all that -- but what I am wondering is whether under the law you could -- first of all, under present law, can you withhold 16 that*:-.information. If someone calls you up and says: When 17 is'*-the :.next shipment?
18 MR. MCCORKLE: We can withhold the information 19 under.:2. 790 right now.
20 COMMISSIONER BRADFORD: We are pretending it is 21 proprietary.
- 22 23 24 Ace-Federal Reponers, Inc.
MR. MCCORKLE: But it is proprietary,. but I am
.not certain as to -- I will have to refer to my legal friends who tell me that that is somewhat suspect.
25 COMMISSIONER BRADFORD: Yes.
19 MR. MCCORKLE: It might not hold up.
2 MR. SHAPAR: Let say some lawyers might disagree 3 to that being the proper approach -- that being the proper
- 4 5
6 approach for defense under an FOIA request.
COMMISSIONER BRADFORD: _But you do feel that under this legi~lation that information would be withholdable?
7 MR. SHAPAR: Yes.
8 COMMISSIONER BRADFORD: Would it extend even to 9 being able to withhold general information such as whether a 10 particular airport is used for shipments?
11 MR. SHAPAR: I*guess you would have to apply the 12 rule of reason. The key to me would be whether or not the
- 13 14 15 availability of the information would make i t easy to steal or divert.
If that information -- there would have to be a 16 reasonable nexus to the overriding qualification here, that 17 i t would, you know, reasonably make it easy to steal it.
18 Then I think reasonably we could say that the rule should 19 cover it.
20 COMMISSIONER BRADFORD: I can begin to now ap-21 preciate more where the controversy is going to come.
22 I take it what you are saying is that theoretically 23 one could say that the mayor of Chicago doesn't -- shouldn't 24 even know that the Chicago airport was being used, because Ace-Federal Reporters, Inc.
25 that would make it easier for someone to lie in wait for --
20 MR. SHAPAR: Yes, but I have full confidence that 2 this Commission or any succeeding Commission wouldn't push it 3 that hard.
4 COMMISSIONER BRADFORD: I am not sure the Congress 5 shares your confidence in it.
6 ,, What about design questions as to a particular 7 plant? I think we discussed that a little bit before, but 8 again, theoretically, I take it an awful lot of questions 9 about the workings of a nuclear power plant would theoreticall 10 £it within the legislation.
11 MR. SHAPAR: Yes.
12 MR. CASE: Yes, the word "equipment" in there, just
- 13 14 15 to cover that.
.COMMISSIONER BRADFORD: An awful of the questions that one could ask about the effects of the ..guillotine break, 16 would be, I suppose, questions that *would be of interest to 17 someone who is concerned with causing one.
18 MR. CASE: You have got competing statutes. You 19 would have if this were passed. One says you make everything 20 public that you can reasonably do, and the other would say:
21 don't let stuff out that would -- and you would have to 22 ' strike a balance.
23 MR. SHAPAR: Really, the key to this, the thrust 24 of your questions, is the reasonableness of the rules that Ace-Federal Reporters, Inc.
25 are promulgated under it, and if you feel uncomfortable with
21 the breadth, we can cut back, because it obviously is broad.
2 The question is where you would like to cut back.
3 MR. CASE My opinion, for whatever it is worth:
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6 You wouldn't cut back on the scope. You would make the standard.-facilitating diversion and raise the standard there; rather than trying to limit the scope of what might be; you 7 would raise it.
8 MR. SHAPAR: That!.s certainly an option.
9 And one thing you might want to consider in pur-10 suing*'.this thought is taking another look at the second 11 qualification:
12 "The unauthorized disclosure of such in-
- 13 14 15 formation could adversely affect the health and safety of the public and the common. :defense and security by facilitating theft, diversion or 16 sabotage of any type of such material or such 17 facilities."
18 Those words could be made stronger in terms of 19 the threshhold that you want to stake out.
20 COMMISSIONER _BRADFORD: Coming back to one of the 21 other standards, if somebody really were inclined to try 22 to withhold sub.s.tantial amounts of information about how a 23 reactor works; they would still have*.-to some how or another 24 be able to relate that to physical security; yes.
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25 MR. CASE: Sabotage; they would have to relate it
I.
22 to sabotage.
2 COMMISSIONER BRADFORD: Well, but sabotage it*could 3 cover, in fact, though, most of the parts, I take it, of the 4 reactor where if you do damage, you could cause real trouble.
5 But if you had also to relate it to physical 6 security, then would you still be able to withhold information 7 about the consequences of the main steamline break, or some-8 thing like that?
9 MR. REAMER: I would say it is ambiguous. The 10 question would come down to, I think, under this proposed 11 legislation, two areas; one would be what is meant by. the 12 term safeguards information, and whether or~~not there is 13 some term of art about the wor¢l safeguards.
14 And the second would be the clause that says:,
15 "This information may include information 16 relat~ng to plant equipment used- for the protection 17 of facilities."
18 You may or may not be confined to p!"Iysical pro-19 tection by these words, (inaudible) under the statute.
20 MR. CASE: Well, depending on what you mean by 21 physical protection, =- -:r(:.dian' t want to be confined to 22 physical protection, because some people read.that very 23 narrowly to mean fences and things like that. And I want 24 to go beyond that to make sure I included plant equipment.
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25 _,COMMISSIONER GILINSKY: In other words, you are
saying any details of reactor systems that might facilitate-----
2 might indicate how they might be disabled.--
3 MR. CASE: Yes.
4 COMMISSIONER GILINSKY: -- would be included.
5 MR. CASE: Would be included.
6 COMMISSIONER GILINSKY: That's broad. You might 7 be including the very safety systems.
8 MR. CASE: Yes, sir.
9 It is a competing consideration. I have to em-10 phasize that.
11 COMMISSIONER GILINSKY: You are.at least suggest-12 ing that -- or .controllln.g information in a good part of the 13 SAR, other than site-related.
14 MR. CASE: All I can say is that it could --
15 COMMISSIONER GILINSKY: Well --
16 MR. CASE: It could extend to that if it met *.
17 the other test of facilitating theft, diversion or sabotage.
18 COMMISSIONER GILINSKY: That is a lot further than 19 I think we ever dreamed of going when we started out on this 20 route.
21 MR. SHAPAR: : But this is true of almost any 22 provision in the Atomic1 Energy Act, if you take a look at the 23 way the statutory standards are now written. It gives you 24 enormous authority.:
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25 Let me point out also that in terms of equipment
24 now in lightwater reactors, of course, it has been openly 2 available*f6r years, but there may be new types of reactors 3 where a key piece of equipm~nt might be vital in terms of
- 4 5
6 sabotaging the entire plant.
COMMISSIONER GILINSKY: Okay; you are using the word "vital" which is differen:t*than --
7 MR. SHAPAR: I am saying it is extremely hard to 8 predict the future in terms of drafting legislation.
9 COMMISSIONER GILINSKY: Well, it is hard to predict 10 the future, anyway.
11 (Laughter. )
12 Or especially the future.
13 COMMISSIONER BRADFORD: If some congressman from 14 Louisiana not Louisiana, but where the last. grain elevator 15 disaster was -- or some place that is frequently along the 16 routes where chlorine is transported -- were to ask: What 17 is different; in other words, why shouldn't this le~islation 18 also extend to other types of facilities, let's say, es-19 specially chlorine gas shipments or LNG shipments.
20 Do we have any -- is there any particular answer 21 about what it is that is special about nuclear?**
22 MR. SHAPAR: Well, I guess one answer might be in 23 terms of the'dimensions of a potential accident.
24 MR. KELLEY: We thought about -- :*did some thinking Ace-Federal Reponers, Inc.
25 about this idea, iri*effect, classifying safety information,
25 classifying.portions of the PSAR, how that fits in relation 2 to the statutory requirement that the ACRS report be made 3 public.
4 As I recall the history on that, the ACRS report 5 on Fermi 1 that went to court was a secret document, and so 6 it was treated that way.
7 And that was a big deal. Congress didn't like it 8 and they wrote a statute which says the ACRS report has to 9 be a part of *the public record~.
10 MR. SHAPAR: I think it says, "subject to classi-11 fication," if my memory serves me right.
12 MR. KELLEY: So that provision cont~mplates there 13 that this stuff could be classified.
14 MR. SHAP~R: Yes.
15 COMMISSIONER BRADFORD: Have we ever actually 16 classified an ACRS report as such?
17 MR. SHAPAR: Not that I know of.
18 MR. CASE: Not on a commercial reactor, but they 19 do they write reports on ERDA ,:now DOE, facilities, which 20 are classified.
21 COMMIS~IONER BRADFORD: Are those classified for 22 this reason:?
23 MR. CASE: No*.
24 COMMISSIONER BRADFORD: Why are*they classified?
Ace-Federal Reporters, Inc.
.25 MR. CASE: Because they have to do with a productio
26 I or restric.ted data under the Atomic Energy Act. They might 2 deal with a submarine where it is confidential, and national 3 security information.
4 COMMISSIONER GILINSKY: They review some of the 5 defense reactbrs.
6 MR. CASE: Yes.
7 MR. MCCORKLE: For fuel cycle facilities, ERDA 8 does have a classification manual, implementing amendment 9 3.47, so all the plants aren't classified at their facilities.
10 That is one of the problems we are running into 11 with some of our*.:l;icensees, because they are under contract 12 to ERDA, and even though it is our physical protection plant, which we would consider unclassified, it is directed by
- e. 13 14 ERDA to be classified.
15 COMMISSIONER GILINSKY: Well, they are doing 16 classified work for ERDA; right?
17 M~. MCCORKLE: They are joint-use facilities.
18 They have directed --
19 COMMISSIONER GILINSKY: For DOE, rather.
20 MR. MCCORKLE: For DOE. We have asked General 21 Atomics to classify their plant.
22 And we are running into a'couple of problems I
23 because the licensees just don 1 .t *know which way to turn.
24 That is the problem that has recently arisen.
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25 MR. SHA.PAR: Is it fair to say that the information
27 that we are now protecting as proprietary is the same kind.
2 of information to which we would apply this ne'\'7 author.i ty.
3 MR. CASE: Yes.
4 MR. SHAPAR: I think at least shows you where the 5 Staff is thinking now, as to where the direction would be 6 in terms of any regulations that we would submit to you for 7 approval, in the event that such legisl.ation were passed.
8 COMMISSIONER GILINSKY: I don't understand that 9 point.
10 MR. SHAPAR: The question I asked was:
11 In terms of current Staff thinking, if this leg-12 islation were now enacted, as to what kind of information 13 would have applied. And I further asked: Would it be es-14 sentially the same kind of information in safeguards plans, 15 that we are now protecting under the rubric of proprietary 16 information.
17 The answer I received was yes.
18 COMMISSIONER GILINSKY: Well, but that is a pretty 19 narrow category of information; fuel cycle facilities and 20 reactor safeguards plans.
21 MR. SHAPAR: Indeed it is.
22 MR. MCCORKLE: I think there is one either con-23 sideration for the ~dvantages that might accrue from th~
I f' '*'..)* v,
- .:,..J I. "
24 broader statement, as Howard has included in his Ist1alement, Ace-Federal Reporters, Inc.
25 and that is under the hypotethical.; suppose we had a study
28 out for contract as to how you blow up the variou's (inaudible) 2 vau.1'.ts .
3 COMMISSIONER GILINSKY: The various what?
4 MR. MCCORKLE: What kinds of explosives, where 5 would you place them, to blow up various types of vaults, 6 to get a facility, or to cause a meltdown of a reactor.
7 COMMISSIONER GILINSKY: Yes.
8 MR. CASE: A vulnerability analysis.
9 MR. _MC CORKLE: A vulnerability analysis, in other 10 words. It is done by a contractor, but it is_generic.
11 Yet, certainly, it is the type of thing that I 12 don't think any of.us would like to see in the papers because
- 13 14 15 it would be blueprint of how to care of the vault, or a particular area --
COMMISSIONER GILINSKY: Do we hal'i.le to do that?
16 Can't we get DOE to do that?
17 (Laughter.)
18 MR. SHAPAR: You can't cover it by proprietary.
19 MR. MCCORKLE: We need some sort of mechanism.
20 I believe it is part of the problem.
21 COMMISSIONER GILINSKY: Okay.
22 Well, this meeting was called really a,t the re-23 quest of the Chairman. I think that we ought to really hold 24 the matter over until we are reconstituted.
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25 MR. SHAPAR: Could I ask if there are any
29 I
additional information. Would**yo.u*.like to see an option, for 2 example, on a tighter --
3 COMMISSIONER GILINSKY: I must say I would like to
- 4 5
6 see it drawn as tightly as possible and still.do what needs to be done, just on the general principle; if you are con-trolling information, you should control as little as -- just 7 restrict it to what you absolutely have \to control.
8 COMMISSIONER BRADFORD: Something along the lines 9 that would essentially permit the Staff to do what they are 10 doing now under the proprietary information right now, but 11 not much more than that.
12 MR. SHAPAR: Why don' t we set it **up for you to
- 13.
14 15 look at.
Would you also like to see the source material deleted from the statute?
16 COMMISSIONER GILINSKY: I think I would, unless you 17 can give a better reason for including it. If you raise the 18 by-product, I guess there you are thinking about waste 19 material.
20 MR. SHAPAR: Well, maybe curie quantities of by~
21 product material.
22 COMMISSIONER GILINSKY: Yes.
23 So I would like that defined a little bit.
24 It may be that it is appropriate for large quan-Ace-Federal Reporters, Inc.
25 tities of highly active materials, *.but to, throw in every li ttl
30 hospital isotope just doesn't seem to be appropriate.
2 MR. SHAPAR: All right.
3 Why don't we try to narrow it in that area, too, 4 and give you an option.
5 COMMISSIONER GILINSKY: Okay.
6 And then we will take a look at it.
7 Thank you very much.
8 (Whereupon, at 10:20 a.m, the hearing in the 9 above-entitled matter was adjourned.)
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Ace-Federal Reporters, Inc.
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