ML22230A170

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Tran-M780221: Discussion of Proposed Legislation Connected with Physical Security and Related Matters
ML22230A170
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Issue date: 02/21/1978
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{{#Wiki_filter:RETURN TO SfiCRETARIAT RECORDS NUCLEAR REGULATORY COMMISSION IN THE MATTER OF: DISCUSSION OF PROPOSED LEGISLATION CONNECTED WITH PHYSICAL SECURITY AND RELATED MATTERS Place - Washington, D. C. Date - Tuesday, 21 February 1978 ACE* FEDERAL REPORTERS, L'iC. Offici.a.l Reporten 444 North Capitol Street Washington, D.C. 2000 l NAT:ONWIDE COVERAGE* DAILY Pages 1 - 56 Telephone: (202) 3A7-3700

( DISCLAIMER This is an unofficial transcript of a meeting of the United States Nuclear Regulatory Commission held on February 21, 1978 in the Commission's offices at 1717 H Street, N. W., Washington, 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 l O CFR 9. 103, it is not pa rt of the formal or i nforma 1 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 with the Commission in any proceeding as the result of or addressed to any statement or argwnent contained herein, except as the Commission may authorize.

CR 6468 HOFFMAN ro mask 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Ace-Federal Reporters, Inc. 25 UNITED.. STATES OF AMERICA NUCLEAR REGULATORY COMMISSION DISCUSSION OF PROPOSED LEGISLATION CONNECTED WITH PHYSICAL SECURITY AND RELATED MATTERS 1 Commissioners*.' Conference Room Room 1.130 1717 H Street, N. W. Washington, D. C. Tuesday, 21 February 1978 The Commission met, pursuant to notice, at 9:55 a.m. BEFORE: DR. JOSEPH M. HENDRIE I C.hairman PETER A. BRADFORD, Commissioner / RICHARD, T~ KENNEDY, Commissioner

68.O l. l gsh 2 2 P R O C E E D I N G S CHAIRMAN HENDRIE: If.w.e may come to order. 3 The Commission m_eets this.morning to discuss a 4 proposal for draft legislation that we*'ve had.in mind that 5 has _been discussed at least on an informal basis with 6 individuals. 7 Vve have papers that have been prepared. Mr. 8 Shapar,.we have a recent arriving memorandum from counsel*'s 9 office. My intent in looking at. this legislation is to 10 see if it would not be more reasonable to look for statutory JJ authority to deal with some of these security information and 12 protection matters and related clearance matters, than to 13 1-4 rsly upon executive orders connected with national security matters and classification under that title. 15 Why donJt you go ahead and outline in summary 16 terms, Howard, the proposal in the paper. Then we1 ll hear 17 discussion back and forth. 18 MR. SHAPAR: All right *. I*'ll be fairly brief. 19 There are actuaily three papers that constitute 20 the core of this particular approach. That was SECY J7-6Jl 21 on December the 9th, JJ7. 22 What that paper did was to focus on the hearing 23 24 process and to give a number of alternatives as to ho.w safeguards information might be best protected in the 25 hearing procsss.

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3 4 5 3 That paper ~ontained no recommendation. There is a memorandum of January 23, J78, which was in rssponse to a request -from the Chairman. It suggested what is really the essentiEl parts of this particular package that you have in front of you today in terms of 6 SECY ]7-6Jl (a), with one excsption, which IJll describe in 7 a moment. 8 So you had in front of you for approximately a 9 month the basi~ part of the proposal that weJre discussing 10 today * . 11 Finally, there is SECY J7-6.J 1 (a), which contains 12 all the elements of the approach. I 3 Let me say that in terms of protecting the 14 safeguards information, there are essentially three phases 15 that one has to look at. One has to Look at protecting the 16 information when it-'s in NRC hands. One has to p.rotect the 17 information.wh.en it-' s non-NRC hands. And one has to protect 18 the.information in the hearing procass itself. 19 I think that lsgislation should also focus on 20 sabotage, as well as diversion. It should rest on health and 21 safety, as well as common defense and security grounds to 22 obtain the maximum leverage that one can obtain in terms of 23 protecting th.a.information effectively. And it certainly 24 should protect th.e information when i t--'s in the hands of 25 nonlicensees, as we.11 as licensees.

h8.0l.3 gsh 2 3 4 I think as you will approach the problem, I.think there..,s one key point that L think is important to putting this problem in perspective, and that is the eventual outcome 4 of a p.roposed rule-making that would impose a clearance 5 regime with respect to access to significant quantities of 6 SNM. 7 This is a proposed rule-making. The Cammi ssion 8 has decided to have a hearing on it. That rule-making has 9 not been completed. JO The reason I think itJs important in terms of Jl one..,s approach to this set of problems which is presented by 12 .this legislation is some,what as follows: that if, indeed, 13 the Commission decides ultimately to require a clearance 14 regime for access to material and light water reactors, then, 15 in effect, you will have a clearance regime, and.then it 16 becomes a question of deciding how much further than that 17 you want to go. 18 Once you"ve decided that some sort of clearance 19 requirement is going to be imposed on the light water 20 reactor community, I would point out that there has been 21 communication with the National Security Council on this 22 matt er, of.which you-'re aware 9 and I guess I *"d sum up --- 23 2-4 25 COMMISSIONER KENNEDY: Is it correct that we haven..,t had an answer? MR. SHAPARJ ThatJs correct. I just wanted to

l68.0I.4 I I gsh 2 3 4 5 6 7 8 9 10 J l 12 13 14 15 16 17 18 19 20 21 22 23 24 25 5 make sure that that did not go unmentionedo So, essentially, the legislation attempts to respond to the Chairman~s request of providing legislation that w_ould protect sensi tLve safeguards information in all three areas. Now.with respect to the hearing process 9 we would amend Section 181 of the Act. You will recall that 181 of tthe Act says: With respect to restricted data and other classified defense information, that you will protect it in the hearing pr6cess by restricting its disclosure to unauthorized persons.*11 But the statute requires that you impose a minimum amount of restraints on the hearing rights of parties. So one of the changes in_this legislation would be to simply expand 181 to cover not only classified information, as it does today, but also unclassified, sensitive safeguards information. With resp_e ct to the information in NRC hands, the legislation would take the direct approach and simply create another exc.epti.on to the F0IA, follo.wing the paradigm of the FAA legislation. The Freedom of Information Act, I might recall for you, says that one of the sets of information that doesn~t have to be revealed pursuant to an F0IA request is information which is put in that category by another statute.

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2 3 4 6 This would be the other statute. Finally, the one change from the draft that you had for the last month that I referred to earlier as put in the Chairman-"s request is to take care of access to.sites. 5 Now there~s been some discussion among us before 6 with respe.ct to possible improvements in the existing 7 legislation which rests, as far as the clearance regime is 8 concerned, on access to significant quantities of SNM 9 that is significant from a common.defense and security JO standpoint. J 1 _ This legislation would expand that concept to 12 include access to sites where license activities are being 13 condu~ted and would put it in terms of common defense and 14 security and health and safety. 15 COMMISSIONER KENNEDY: Why would health and 16 safety bs included? 17 MR. SHAPAR: I would.think that one example, if 18 we had somebody who was temperamental in the control room 19 and might do some damage to the reactor and cause an 20 incident 21 COMMISSIONER KENNEDY: The same regime, then, would 22 be applicable? 23 24 MR. SHAPAR: It could be, depending upon how you implement it by your r.egulations, because this is, of course, 25 a broad authority to promulgate regulations to protect the

68.0l.6 gsh 7 site, the reactor, and the information. 2 COMMISSIONER KENNEDY: It seems to.me those two 3 situations are quite different in their character, quite 4 different, indeed. 5 Well, okay. 6 MR. SHAPAR: Well, as an example, if youJre lnoking 7 for historical precedent, Section 161 of the Act provides 8 that ~ertain circumscribed authority of the Commission 9 to protect certain sites and material, and they're combined 10 in Se£tion 161 of the Act now. Jl If thatJs a question of how you want to approach 12 13 14 15 16 17 18 19 20 21 22 23 24 25 it, ~e could split it into different section. I follow the paradigm of 161(1). But those, I think, are the essential elements of what this legislation was intended to do. And that concludes my presentation.

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CHAIRMAN HENDRIE: Let's see. Bill, do you have 2 anything to add.? 3 MR. PARLER: No, sir, I don't. 4 CHAIRJYlAN HENDRIE: I was going to ask Bill Reamer to 5 talk about his side, but maybe you have something. Bill, we 6 just got them in. I think you need to outline, because the 7 commissioners may **not have had much of a chance to. 8 MR. REAMER: I don't think we come i~.with any major 9 objections to the approach. We understand the urgent need for 10 for the legislation, and we think, as ELD has stated the objec.,.._, 11 tion, the draft language they propose accomplishes that objectiv. 12 We have a couple of questions. I think the basic 13 question we have deals with the proposal for a clearance program 14 15 16 17 18 19 20 21 22 23 24 for access to sites, and our question simply is: mesh with what the commission is now doing?* How does this It has a rulemaking underway. We've recently constitu ed a board and held a public hearing. 76~ll(a) doesn't speak to how the clearance program for access to sites meshes with the current activities the commission has underway. So far as the proposal for protecting safeguards information, there, I think, our comments are not in the way of objections to the approach, but would simply pose what is the obvious option f;or the commission to,. take. And that is, rather than to se.ek a comprehensive regime to cover all types of safe-Ace-Federal Reporters, Inc. guards information, lncluding safeguards information that's 25

pv2 9 already covered by the national security information executive 2 order, the commission could go to the Congress and seek protec-3 tion for what is the most doubtful type of information under the 4 executive order. 5 On physical protection of plants, I think the major 6 question we have is the first point I raised, which is: How 7 does the clearance program. for access to sites mesh with.. the 8 current activities, the access to materials? 9 CHAIRMAN HENDRIE: Let's see. You note in the memoran-10 dum that 11 MR. REAMER: Well, specifically, we say that if there 12 is a problem in the -- 13 CHAIRMAN HENDRIE: Just to make it clear, we go forward 14 with the legislation that covers this point, that we don't -- 15 we're confirming our authority as -- 16 MR. REAMER: As to that portion that covers access to 17 sites, the option would be either not to go forward with the 18 19 20 21 22 23 24 proposal but to await the outcome of the current rulemaking, including any judicial review that you will,,1make, or *to go forward with the legislative proposal at this time but state at the outset that its purpose is not for a new scheme but rather to confirm the authority, the statutory authority which the commission believes it has to undertake the activities it's currently undertaking. Ace-Federal Reporters, Inc. 25 COMMISSIONER KENNEDY: Could *you, Bill, explain what I

pv3 2 3 4 10 think has been characterized here as a well-known argument of the extent o,f that authority. MR. REAMER: Well CHAIRMAN HENDRIE: Let's see. Let me ask -- before 5 there's an answer, let me ask the following question. In 6 counsel's opinion, will a fairly full answer to that question 7 prejudice the commission I s possible litigation position,?* 8 9 10 11 MR. KELLY: No, I don't think so. CHAIRMAN HENDRIE: Thank you~ Go ahead. MR. REAMER: Let me just be sure what you're talking 12 about here, Commissioner Kennedy. Where are you reading from? 13 COMMISSIONER KENNEDY: I'm reading from page 5. 14 There's a well~known question about whether existing section 15 161(i) provides sufficient legal authority. Could you go on 16 and speak to that a little bitJ 17 MR. REAMER: The question stems from the language in 18 16l(_i) (2), speaks to the theft or diversion or loss of materials, 19 and authorizes a program to clear people to guard against that 20 possibility, that threat, and to clear people on the basis of 21 finding that their access to material would not pose a threat 22 to the common defense and security. 23 It's been argued on the other side that the language 24 of 161 (i) (2) is narrow:. ..It basically talks about theft or Ace-Federal Reporters, Inc. 25 diversion of material; it doesn't talk about sabotage of

pv4 11 facilities; and that in the case of a nuclear power reactor 2 the concern is not with the theft of materials but rather with 3 sabotage of a facility. 4 The argument on the other side is that in 19 7.4.;

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the Atomic Energy Commission suQmitted the legislative proposal 6 to the Congress, it had, at that time, under consideration a 7 clearance program. That clearance program is the rough equiva-8 lent to the clearance program that was proposed in a rulemaking 9 in March 1977, which includes, as one of the potential threats 10 that it's designed to protect against, a sabotage of a light 11 water reactor. 12 The Congress, in the legislative history of 161(i) (2) 13 in 1974, seemed to make clear, so the argument goes, that it 14 was intending to authorize the commission to implement that 15 program, the program the commission had under consideration, 16 and was shortly to propose... So, that's the argument on the othe 17 18 side. MR. SHAPAR: I think there's another point, too, in 19 response to your question, and that is, who actually has access 20 to SNM light water reactors. 21 22 23 24 COMMISSIONER KENNEDY: Documented.-- MR. KELLY: It's a little~known argument. Ace-Federal Reporters, Inc. CHAIR.J."IAN HENDRIE: Yes. Remind me, we have gone forward with a rulemaking, the proposal under consideration,. there is to establish a clearance requirement for persons having 2.5

pv5 12 access to special nuclear materials. Is it limited to fuel 2 cycle, or does it cover the reactor plants, too, presumably? 3 MR. SHAPAR: It covers reactors. 4 MR. REAM:ER: As proposed, it does cover the reactor. 5 CHAIRMAN HENDRIE: And the basis for this clearance 6 program is that these are national security matters.0 and individua s 7 who have access to this material have to be considered reliable 8 and so "on? 9 MR. REAMER: Well, never quite that nice cut-and-dried, 10 national security versus public health and $afety. But the 11 language of 161(i) (2) does not mention public health and safety. 12 It talks in terms of common defense and security. 13 MR. SHAPAR':. The rule, or at least the statement of 14 considerations, mentions both. 15 CHAIRMAN HENDRIE; It does seem to me that awaiting 16 the outcome of the rulemaking, together with the outcome of 17 such judicial challenges as in the present climatec are almost 18 likely *to be launched from one side or another, leave the issue 19 in doubt, for many years to come. 20 It has seemed to me very desirable to clarify the 21 commission's au:i:h6rity~in this area, and I presume that, since 22 we have made little bones about the question you've just 23 discussed, that there is reasonable argument over the structure 24 of 16l(i) (2), that with going forward, then, it doesn't seem to Ace-Federal Reporters, Inc. 25 me, with a proposal for legislation necessarily increases the end# 2 commission's litigation liabilities in that area necessarily.

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3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Ace-Federal Reporters, Inc_ 25 13 And the sorts of things you point out, it cautions in the footnote, you don't say that you regard it as making explicit authority that we believe that we have. That sort of thing is certainly necessary.* But I wonder if indeed you think there is substantial litigation that we don't already have that's brought on by the legislative proposal? MR. KELLY: You're adding to litigational risk by asking for legislation. I don't see that. MR. REAMER: The risk, I think, is there in the rule right now. The rule is a controversial rule, and the publi hearing has right now over 40 participants, including the ACLU~ So it seems to me that the risk is already-there. you're adding to it. I don't think* In fact, I think one could characterize the action of going back to the Congress as prudent action on the part of the Commission; make,.explicit the authority to do this. MR. KELLY: It seems to me, if. I can comment, I'm not quite sure where this cuts. But we put out a proposed rule, which includes a clearance regime for LWBR. I have not personally read the comments, but as I understand it, we've got quite a bib.:of comment back with people saying, there's a serious tivil liberties issue posed by this issue. So that, I think, was one consideration which led to the suggesti?n to.have this hearing and set up the Board and

dkw 2 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Ace-Federal Reporters, Inc. 25 14 set up -- and that will go on and take some months to complete, I assume. Do we, by going for legislation now or in the next month or so, does the Commission I guess I'm talking about there is.a question of what posture you're goi?g out in then. Normally, when you go for legislation, you are saying that you support it, that it's a good idea. Have we -- COMMISSIONER KENNEDY: You can't propose it if you. don't think it's a good idea, I don't suppose. CHl'H1:RMAN HENDRIE: I suppose in ~ principle you could go forward and suggest legislation and say, now, I think this is a bad idea. (Laughter.) MR. KELLY: I haven't gotten to that. COMMISSIONER KENNEDY: That's right. MR. KELLY: I haven't gotten to my point yet. still making my way toward the point. CHAIRMAN HENDRIE: Shoot. Please continue. I'm MR. KELLY: The point is: there are some people out there who say there are serious civil liberties problems here, and we say, now, we're going to sit down and listen to you fellows. Now we're going to the Hill before the hearing~ saying, this is.. the way to go. Have we then considered and

dkw 3 2 3 4 5 6 7 8 9 10 l l 12 13 14 15 16 17 18 19 20 21 22 23 24 Ace-Federal Reporters, Inc. 25 15 decided the civil liberties issue which a number of people are attemption to raise? Or are we going to the Congress -- COMMISSIONER KENNEDY: Are we mooting the whole procedure anyway, in the rule-:-maki-ng, as a practical matter? CHAIRMAN HENDRIE: No, I don't think so. MR. SHAPAR: You have to cc:ome:.1.up with the result of a new statute. CHAIRMAN HENDRIE: You know the posture which I at least perceive myself in, in attempting to bring these things forward, is, with regard to this point, a posture of trying to get from the Congress, and thinking it reasonable to ask the Congress, for clarification of the authority which we must believe we have, otherwise, we are proposing a rule that is illegal. Now,,ri,'/ it seems to me that the rule-making, on the other hand the legislation, after all, is a few words. And there' 11 be a f.ew more words in connection with the background explanations and so on. But the rule-making begins now to get down to all kinds of nuts and bolts dealing with some of the specific-s of these issues, and I think it would be very valuable in terms of the sort of implementation that the Commission might want to give to a clearance rule, if indeed it decided that it wanted such a rule, and find that after all the comments, after that record is laid out -- and whether over here we have or __ have -not attempted to clarify the µnderlying

dkw 4 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 2T 22 23 24-Ace-Federal Reporters, Inc. 25 16 authority of the Commission to have such a rule doesn't seem to me to short-c+/-rcuit or breach or nullify any of that ongoing proceeding. In *fact, in some ways COMMISSIONER KENNEDY: It does to me. CHAIRMAN HENDRIE: It might turn out to be one of our more efficient operations. MR. KELLY: I think I'm having some Monday morning trouble articulating my point. I think you could go to Congress seeking confirmatory authority to go::,lifown this road without foreclosing consideration of such civil liberties considerations as fuay be right. But I think ohe has to give a little thought to just how you present the pa*ckage. COMMISSIONER KENNEDY: I must say~ I cannot conceive, however, in the circums.tances, that the charge would not be laid that, in fact, for all intents and pupposes, we are mooting the procedure. What we're doing is certainly limiting its scope beyond that which, *for the commentators, was the scope of the issue which could be addressed. CHAIRMAN HENDRIE: I don't :~understand though. Is there a specific direction in the rule-making that the underlying statutory authority would not be a matter for the rule-making? And although opinions from people -- you could

dkw 5 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Ace-Federal Reporters, Inc. 25 17 always write your opinion after we've taken it into account, presumably that that was not an area to be considered. ~OMMISSIONER KENNEDY: The minute that we say that we need clarification, it seems to me CHAIRMAN HENDRIE: Not saying it. COMMISSIONER KENNEDY: I guess I would use the word "synonymously" here. MR. SHAPAR: I think I would describe it this way: at one time the Atomic Energy Commission thought they need to go to the Congress and ask for legislation that would authorize them to impose a clearance regime oh the people who had access to material. in terms of finally implementing that authority that was given a few years ago, the Commission has started a rule-making to implement that existing-authority. In the course of its consideration of that imple-mentation, it has found areas where that legislation could be improved, clarified, or modified, with reasons for each modification and approval. So it seems to me that that is a legitimate rationale for going up to the Congress and saying, "These are the areas where we think the legislation could be improved without prejudice to how we're implementing it now under current authority." CHAIRMAN HENDRIE: Ed? MR. GASE:* You shouldn't really take it as a civil

kw 6 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Ace-Federal Reporters, Inc. 25 18 liberties question. The current rule-mkaing could well substitute for some of the more onerous civil liberties problems we now have in reactors. For instance, pat-down search. So it provides another method of dealing with the problem, and it would help the Commission achieve a more balance solution to the problem, with perhaps a better approachito civil liberties in total than we have today. There are lots of civil liberties considerations involved in this issue. COMMISSIONER BRADFORD: Somehow, Howard, your explanation.of the legislation sounds _like all explaining it in terms of confirmatory research to.me,* confirmatory legislation. MR. SHAPAR: Gee, that's not the analogy I had in mind. CHAIRMAN HENDRIE: What did you have in mind? Let's see, does OPE care to make a comment? MR. AUSTIN: Well, Mr. Chairman, my message, I guess, is rather short. We have no objection to the legislation approach. That's all we have to say. CHAIRMAN HENDRIE: Well, that's succinctly put. Would that all contributions from all the Staff officers would be thus tq __ the -point.

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Howard*, a couple of questions about this. Just reading the proposed Section 147, it reads as though you could in fact withhold almost any part of the design of, say; a nuclear reactor, if you're going to read the words broadly; that is, "knowledge of the workings of the power plant" of almost any sort which could facilitate sabotage. MR. SHAPAR: Yes. Two points: I would hope and assume that, even though the language is broad, it would be constructively and intelligently implemented.* I do have an analogy here, and that's the analogy_ and of course if we didn't, we'd be subject to judicial and congressional oversight. My own approach in drafting a statute of this kind is not to unduly impinge on the Commission's flexibility to deal with situations that come up in the future, and not tie it down specifically beyond that. But I do have a paradigm here, ~d that is, the Federal Aviation Administration where they got an exception to the FOIA with respect to, as I recall, not the precise words, but something that would have an ~ffect on air safety. And this is-the analogy here. Of course if the Commission is so inclined, we could attempt to define safeguards information. I would recommend against it; because you cannot_ foresee all the

dkw 8 I 2 3 4 5 6 7 20 kinds of information you don't normally handle that kind of a thing in a statute. You try to give yourself enough flexibility to deal with the situations that may occur in the future. CO~..MISSIONER BRADFORD: But if one of our more skeptical committee chairmen in the House would look down and say, "Mr. Shapar~ under this legislation, could you theoretical-8 ly withhold the design of the reactor?" what would your answer 9

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10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 MR. SHAPAR: The answer would be: theoretically, yes. And then I'd count noses on votes deciding whether I wanted to back off at that time. COMMISSIONER KENNEDY: Why don't you just tell them no and assume that you have to? COMMISSIONER BRADFORD: I think, in fact, that may be a point worth considering, that we don't want to go up to the Hill in a posture that the Congress would clearly find unac-. ceptable on the same point. With regard to the Section 151 change, it says, "access to any site where activity licensed by the Commission are conducted in limited session, character,,associations, and loyalty shall have been investigated by the standard investigations... " and so on. Does that mean anyone who is visiting a nuclear Ace-Federal Reporters, Inc. power.plant would have to be investigated? 25

dkw 9 2 3 4 5 6 21 MR. SHAPAR: It could::,be, if we implement it that way by rule-making. This is essentially the same language you have in 16l(i) (2), just carried over to this area. COMMISSIONER BRADFORD: Okay. Now, how is that interpreted, in fact? I know 7 I just got something in the mail the other day, something 8 about not having started their visitor programs. 9 MR. CASE: It's interpret~d-- as how we' re going 10 in accidents -- 11 COMMISSIONER BRADFORD: As long as*you're with 12 somebody you're not required to undergo any investigation? 13 MR. SHAPAR: T:h,,the present situation, they' re 14 not, according to the rule. 15 16 MR. CASE: That's the way it's being implemented. MR. SHAPAR: The answer to the question then, 17 Commissioner, is, we haven't implemented the existing 18 19 20 statute yet. It has the counterpart language_ That's the essence of the proposed rule~making. COMMISSIONER BRADFORD: Does the phrase""character, 21 associations~ and loyal~y~" is that one that recurs throughout 22 the statute? 23 MR. SHAPAR: It's my impression that it is, that 24 it's in 161 as well. Ace-Federal Reporters, Inc. 25 COMMISSIONER KENNEDY: "Sabotage," I think the

dkw 10 2 3 4 5 6 7 8 9 10 l l words are, any type. MR. SHAPAR: And also, diverting*coal at the present time. (Laughter.) COMMISSIONER KENNEDY: I'm being serious, very 22 serious indeed. You're going to get the question, and I think we ought to think about it before we send it up there. We're talking about safeguards of any type -- I mean, abotage of any type, whatever that is construed to mean. MR. SHAPAR: That has a purpose because at the Commission some time ago -- this was the Siegel case, which has 12 been discussed sometimes before the Commission; it's an 13 14 15 16 17 18 19 20 21 22 23 24 Ace-Federal Reporters, Inc. 25 old case -- and that is, the Commission had a rule that says, an ~pplicant, the design for his reactor does not have to provide protective ~easures against acts of war. And the Commission in the rule, I guess, took the position, if my memory serves me right, that the design did not need to be protected against foreign agents, but did have to protect against industrial sabotage. Well, obviously, in terms of protecting a site, in terms of safeguard, I would not think you would want to protect it only against industrial saboteurs, but you would want to protect it truly against an outside force of some sort. This language was intended to get away, in the safeguards cont~xt, ~rom the industrial sabotage restriction,

dkw 11 2 3 4 5 6 7 8 9 10 1 1 12 13 14 15 16 17 18 19 20 21 22 23 24 Ace-Federal Reporters, Inc. 25 23 which the Commission.has put in its rules up to this time. CHAIRMAN HENDRIE: Well, let's see. Would it be helpful to scan briefly the sections with regard to the 147 addition? There are several possible variations recommended by counsel's memorandum. One of them is to be a little more explicit about the nature of the information that can be pro-tected under this section. I suggest that it might be cate~ gorized as material control and accounting procedures, physical protection measures* against material. diversion and sabotage. If we chose to go in the direction-of being a little more explicit, I'm not sure that that enumeration covers it. MR. SHAPAR: This was the earlier OGC version that was sent to you, and we asked you to comment. I deliberately took it out for the reasons I explained. But I think it's a legitimate issue. COMMISSIONER KENNEDY: What were those reasons? MR. SHAPAR: I think you'd _be impinging unnecessarily on your flexibility. And the paradigm, as I see it, is the FAA statute in terms of air safety. I want to give you as much flexibility as possible. But it's a legitimate issue for you to discuss, if you'd feel more comfortable about cutting it back. CO~~1ISSIONER KENNEDY: This is a general proposition .L,. .1.

dkw 12 2 3 4 5 6 7 8 9 10 11 '12 13 14 15 16 17 18 19 20 21 22 23 24 Ace-Federal Reporters, Inc. 25 24 in matters of this kind where we're affected not the nuclear industry or the utilities that operate the facilities but rather reaching br~ader into the lives of Americans. I would like us to be as restricted as the law will allow. As a practical matter, I don't like -- as has been heard at this table on many occasions in the past -- I don't like the proposition that all that I, an appointed official responsible to no one.. in the electorate, reach into areas which involve the social condition of the people in this country. I don't have any authority to do so. I don't want any legal authority given me to do that. Unless the Congress knows precisely what it's doing in giving me that authority. And I don't want any flexibility so that I can assume that responsibility, because I'm not going to do it. CHAIRMAN HENDRIE: What we're dealing with.. here is protection of things like physical security plans, the details of physical security plans at whi~ewater plants. The question is -- COMMISSIONER KENNEDY: It syould be spelled out specifically. CHAIRMAN HENDRIE: The question in the language that Howard has drafted runs essentially, "The Commission has authority to prescribe regulations to prohibit disclosure of the information.. :", skip a batch of things, "... pertinent

dkw 13 2 3 4 5 7 8 9 10 l l 12 13 14 15 16 17 18 19 20 21 22 23 24 Ace-Federal Reporters, Inc. 25 25 to these facilities, if in the judgment of the Commission the disclosure of such information could adversely affect the health and safety of the public, or the common:defense and security, by facilitating that diversion or sabotage of any type." Okay, that's one prescription. A second one would be to attempt to categorize the information as information relating to material control and accounting matters, presumably for special nuclear materials, and physical protection measures against theft or diversion or,sabotage. And it's an arguably point, certainly, whether it's better one way or another. But I wonder whether the drafted language information relating to all these things, if in the judgment of the Commission the disclosure of such information could adversely affect the health and safety and so on and so on by facilitating theft, diversion, or sabotage, it seems to me to lay a reasonable basis -- you can go ahead and characterize it further. COMMISSIONER BRADFORD: I agree with much that Dick has said about the desirability of making ourselves -- sticking ourselves a little bit more in this area. I just don't think that those points aside, we can very credibly go before the Congress and ask for sweeping power to classify information. There's too much concern about openness of our legislative

dkw 14 end #4 2 3 4 5 6 7 8 9 10 l l 12 13 14 15 16 17 18 19 20 21 22 23 24 Ace-Federal Reporters, Inc. 25 26 process as it is. I think legislation this broadly* worded could go very far. And I think it could be a credible effort on our part if we're specific about what it was we inteded to restrict.

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27 CHAIRMAN HENDRIE: I raise the question then, do you_think you can fairly get both the protection we 3 would iike to have for this information and be more 4 expli~it as you go beyond characterizing the information 5 in question as that, th.e disclosure of_.which could adversely 6 affe,ct public health and safety, or common defense and 7 security by facilitating theft, diversion, or s.abotage? 8 CO MMI SSI ONER BRADFORD: We.11 9 CHAIRMAN HENDRIE: If you go ahead and start to 10 enumerate now, or attempt to enumerate all of the information JI that falls into that category that.,,s more explicitly and 12 precisely confined, do you have pretty fair confidence that 13 14 15 16 17 18 19 20 21 22 23 24 25 you can make the more detailed language, in fact, cover the cases that are more likely to come up over the long stret~h exercise of such legislation? I think that.,,s -- COMMISSIONER BRADFORD.: It's certainly a fair question. But let me just ask people who sort of are on the firing line, so to speak, on this, whether there are types of information beyond the physical protection and material ~ontrol and accounting information that.,,s at i~sue here? Are there other types of information which we sought to withhold or that w.e want to withhold, or felt we. could and shouldn.,,t in past cases? What sorts of things?

r-68. 05. 2 I gsh 28 2 MR. CASE: Details of wiring layouts. ThereJs been issues on that, whether it should or should not be 3 disclosed. It sometimes goes one way and sometimes goes the 4 other. 5 CHAIRMAN HENDRIE: I can recail cases where 6 utility executives were coming in and saying,.we wonJt give 7 you the detailed,wiring _layouts on a_ll of the safety 8 . instrumentation because to put that;stuff in the public 9 record is to go beyond any reasonable standard of disclosure. JO It just makes readily available to anybody whoJd like to .11 ca use mi sch i.e f where to go in and put the jump er s and 12 screwdriv.ers and one.. thing and another. 13 I can remember? you know, some real donnybr,ook s 14 over g.etting the information to the reviewers so that they 15 could look at it and provide some reasonable level of 16 protection. 17 Now wiring diagrams for safety instrumentation 18 is that part of the physical security plant. I think if 19 youJll refer to it, itJs the physical security plant. ItJs 20 the information youJre going to ~rotect. YouJve excluded 21 that. 22 That argument, then, would have to continue -- 23 now maybe thatJs ail right. 24 COMMISSIONER BRADFORD: Let me come at it the 25 other way.

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29 How do you Brticulate what it is that you donJt want to restrict? CHAIRMAN HENDRIE: Those elements of the plant 4 site.charactertstics of plant layout, plant design, plant 5 construe ti.on, pl ant operation, that are necessary to a 6 reasonable examination and judgment on the reactor safety 7 aspects -- 8 But the problem defining that way is just as hard 9 as the other way, and because of the mass of information that 10 one wants to consider on that side is very large, you might JI have a lot of trouble trying to do it that way, and.then 12 13 get everything else to be in the protected area. COMMISSIONER BRADFORD: There are cJearly a bunch 14 of areas with someone saying, I want to appraise the safety 15 of this plant. One,would make some kind of public claim 16 that he needed tha information and at the same time, someone 17 concerned about preventing sabotage could make an equaJly 18 good claim that they shouldnJt. ThereJs tDo much disclosure 19 as there is. 20 What we1 re doing here is asking the Congress pretty 21 much to tru5t us, but to give us the power, if we wanted to, 22 to come very.heavily down on t!he side of prevention of 23 24 sabotage, theft, or subversion. CHAIRMAN HENDRIEJ I think that puts the matter 25 rather precisely.

468.05.4 I gsh I 1-1 I I I I 2 3 4 5 6 30 MR. SHAPAR: I guess if you limit it to diversion, your task,would be easier._ If you embra.ce sabotage, I... think that does expand the information. COMMISSIONER KENNEDY: That*'s precisely the problem. MR. CASE: You have two statutory requirements: To 7 make public as much as you can; and withhold. And they.,,re 8 competing. 9 CHAIRMAN HENDRIE: J 1 m sympathetic to the 10 p.roposition that if we could be reasonably explicit --- .11 COMMISSIONER KENNEDY: It says sabotage of any 12 type, even though it is prefaced by the judgment of the L3 Commission that the exposure of such information could 14 adversely affect health and safety or common defense and 15 security. 16 It says sabotage of any type means we.,,re going to 17 have to sit down and describe a range of sabotage actions and 18 decida these we would deem possibly to affect the public 19 health and safety; these we wouldn.,,t. 20 I submit, maybe we can be more explicit than that 21 right now, rather than si.tting down and doing it later. 22 CHAIRMAN HENDRIE: Well, I want to go on and finish 23 what I was going to say. 24 I am sympathetic to the point of trying to be 25 reasonably axplicit. I also don1 t want us to set down a

68.05.5 gsh 2 31 set of words in that attempt which then turn out to leave some difficult questions for the f.uture, p.articularly in 3 the sense of having b_een.explicit and not*having included 4 some area which we later find to be in. By George, weJve 5 .now very carefully.identified that area to be unprotectable. 6 That.w orr i es me a l i t t le bit, t.oo

  • 7 I J d be glad to en courage Howard, Mr. Par 1 er, and 8

the counsel, and so on to dispute together a bit and see if 9 some somewhat more careful description of the information 10 could be r_ecommended. J l 12 13 COMM! SSI ONER BRADFORD,: That.would be helpful to .me, unless you tell me youJve already got it. MR. SHAPAR: I.think that we ~ould take a hard 1 4 look. 15 CHAIRMAN HENDRIE~ IJm sure that these genius 16 people, in discuss ion they could just get to kno.w each oth.erJ s 17 arguments be~ter. 18 COMMISSIONER BRADFORD: Have you, in fact, in 19 specific cases ~ithheld information going beyond physical 20 security? 21 MR. CASE: No, but to some degree, itJs affected 22 23 24 25 the safety reviews. We sometimes get diagrams, lnok at them in our offices, and get back to the people so that we don*'t have to face that kind of question. COMMISSIONER BRADFORD: But you-'ve never been in a

. 68. 05. 6 gsh. 2 3 situation where the intervenor group pressed for information like this. 32 You keep saying, no, you canJt have it for 4 security reasons. 5 MR. CASE: Of course we have that i.ssue in 6 Diablo Canyon. 7 COMMISSIONER BRADFORD: What are th.ey asking you 8 to do, though? I thought that.was physical security. 9 MR. REAMER~ It is physical security. 10 MR. SHAPAR: I donJt_think we want to discuss 1 l that any more. 12 13 14 15 16 17 CHAIRMAN HENDRIE: You can*'t. IJm.happ.ily in conflict on the whols thing, so I can wailow in it to my heartJs content. But the rest of you wiil undoubtedly ha~e opportunitiBs. COMMISSIONER KENNEDY: May I ask another quest ion? COMMISSIONER BRADFORD: Be careful, though. I 18 just tried it a minute ago, and look where it got me. 19 (Laughter.) 20 COMMISSIONER KENNEDY: It says, "The legislative 21 proposal covering all safeguards.information with regard 22 to the desirable feature of es tabl.ish ing a compreh.ens i ve and 23 rational statutory scheme would a+/-fect nuclear safsguards 24 25 information generally *.11 It seems to me thatJs sensible.

68.0507 gsh 2 .33 However, it goes on to say, "Nonethele.ss, a comprahensive statutory scheme would probably not alter the 3 Executive Order.11652, classification requirement for 4 safeguards and information affecting the national security." 5 No.w what's the practical effect of that? 6 MR. REAMER: The practical effect is that there 7 will always be the national security requirement that certain 8 types of information be classified and that people be 9 cleared according to criteria promulgated by those 10 agencies with responsibilities to implement the order, Jl and that people be cleared according to that criteria for 12 access t,o that information. 13 So if we are to have a program that includes 14 _national security information, if weJre to have a program 15 for protecting that information, and for clearing people 16 for access to it, it caonot be viewed as standing solely on 17 its own two feet and setting the sole sum total of the 18 requirements for access to a.11 information. 19 There will always be this separate requirement. 20 COMMISSIONER KENNEDY~ That-{s what I thought you 21 meant. 22 So as a practical matter, when we speak in the 23 language of_this proposed statute of the defense and 24 security, common defense and security, to the extent that we 25 ascertain that the common defense and security is the reason

468.05.8 gsh - ~-:)/ 2 3 4 5 6 7 8 9 JO .1 1 12 1.3 14 15 . 16 17 18 1 9 20 21 22 23 2A 25 34 why the material must be withheld, then whatever we do .must be consistent with the requirements of J1652. Is that correct? Is that what youJre saying?

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3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Ace-Federal Reporters, Inc. 25 35 MR. REAMER: Yes, sir. COMMISSIONER KENNEDY: Regardless of our own statutory authority. MR. SHAPAR: What you say, in effect, is that we would have to classify. COMMISSIONER KENNEDY: That's right. Isn't that correct? MR. SHAPAR: Yes. COMMISSIONER KENNEDY: And therefore our own authority in this case would be somewhat meaningless,* :to the extent that the common defense and security is involved. Is that correct or not7 MR. SHAPAR: That's quite correct. COMMISSIONER KENNEDY: Explain to me how it isn't. MR. SHAPAR: If it's a question of just parsing the word of the executive order, I think the commission has seen a fair amount of discretion involved in applying the broad words of the executive order. By*the way, the executive order would be revised, I think, to make it easier to classify this sort of information, but it's still in terms of the common defense and security, and there's a broad measure of discretion still remaining, and I think -- I don't know if it's ever going to be a question of black-and-white. COMMISSIONER KENNEDY: Howard, what I'm trying to say is. let me go at it from the ofher side, now is it

pv2 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 .Ace-Federal Reporters, Inc. 25 36 possible that we would decide that something needed protection under this revised section 147 on common defense and security grounds, whereas under the executive order 11-6-52 we would not have classified it? MR. SHAPAR: I would think -- I'm not sure I under-stand that question. Let me try to get at it this way. If the commission felt that it was the kind of information covered by:the,executive order, the commission has the authority and, I guess, the duty.to classify the information,.*,in which case you.,wouldn' t. be using the authority that would be granted to you under this proposed statute. COMMISSIONER KENNEDY: 'l'hat is _the nature of my question. MR. SHAPAR: Up,.'.to.:now I would say that the commissi rt has. never felt that any information had to be classifed under the executive order. COMMISSIONER KENNEDY: Well, okay. Therefore, it is possible -- that's what I'm getting at -- it is poss~ble, then, if I understand what you're saying, that we would conclud that the common defense and security requires that we protect the information although it is not classified and we would not classify it. MR. SHAPAR; That's correct. COMMISSIONER KENNEDY: And so we're putting the common defense and security into *a-

  • broader realm, indeed,

pv3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Ace-Federal Reporters, Inc. 25 37 than the executive order, which I think is something that we have to think about a little bit, too. CHAIRMAN HENDRIE: I don't understand that. COMMISSIONER KENNEDY: That's what he's saying. I don't understand it, either, but that's exactly the way it turns out. CHAIRMAN HENDRIE: In any such case, the basis for protection would not be that it was a national security rna:t.ter, but that it was prudent f,rom the standpoint of heal th and safety of the public. COMMISSIONER KENNEDY: It says _.here the disclosure of such information could adversely affect the health and safety of the public or the common defense and security by facilitating theft, diveisiort, or sabotage of any type of such material or facility. Since it says "or;" let's take the case in which the common:-*,defense and security -- we decide the common defense and security requires that we do something to protect this information. This provision in the statute would authorize us to do that, even though, if we looked at the executive order we might not necessarily ~-:this is a hypothetic~l case -- we might not necessarily have concluded that it would be classi~. fiable under the executive order. MR. SHAPAR: That's not surpr1sing, because this standard is different from the standard in the executive order.

pr4 l 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Ace-Federal Reporters, Inc. 25 38 COMMISSIONER KENNEDY: That's what I'm saying*. So, we have a different standard going beyond the executive order for the common defense and security of the United States. COMMISSIONER BRADFORD: What is the standard in the executive order? CHAIRMAN HENDRIE: The executive order is limited to the common defense and security, and you add to it here -- COMMISSIONER KENNEDY: Another common defense and security. CHAIRMAN HENDRIE: No. You add to it here health and safety. .COMMISSIONER KENNEDY: It says "or the common defense and security." CHAIRMAN HENDRIE: That simply reiterates whatever the executive order provides. MR. SHAPAR: The proposed lang.uage of the executive order is as follows: "could reasonably be expected to significantly Giiminish the effectiveness of U.S. Government programs for safeguarding nuclear materials or facilities." CHAIRMAN HENDRIE: There's another section_in there. MR. SHAPAR: The section that talks about an adverse impact. MR. REAMER: "Substantial harm'!- -- that's in the proposed wording, That's not the same as in the currently effective order.

pv5 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Ace-Federal Reporters, Inc. 25 39 CHAIRJYlAN HENDRIE: Yes. COMMISSIONER BRADFORD: The first one that you read, Howard, sounds... as though it does not apply very often in a reactor situation -- excuse me, a power plant situation. MR. SHAPAR: Well, it's pretty broad language, Commissioner: "significantly diminish the effectiveness of the U.S. Government programs for safeguarding nuclear materials or facilities." COMMISSIONER BRADFORD: Okay, "or facilities." MR. REhMER: But that has to be read against the other requirement. MR. SHAPAR: '.'Substantial harm." MR. REAMER: Right. "Substantial harm to national security." There are two requirements: one, that it fit in __, c that category; and two, that it still fit.. this nexus between heal th ahd1..securi ty. COMMISSIONER KENNEDY: Why don't we scratch, if we don't intend to use this? !f we don't intend to use this to protect the common defense and security, why don't we strike it out? If the only basis on which we could make a decision under this is the public heal th and,. safety, why don't we say MR. SHAPAR: That means it would only leave you an out, the* *only option you would have with respect to common defense and security would be classification.

pv6 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Ace-Federal Reporters, Inc. 25 40 COMMISSIONER KENNEDY: That's exactly my point. You are saying -- we're saying that,although common defense and security could be conceivably taken car~ of by the executive order or ** might not reach under the executive order far enough, we could take action to protect the common defense and security beyond that provided by the executive order. That's what I want to be sure I am clear on. The chairman doesn't think so. CHAIRMAN HENDRIE: No, no. I understand your question now; and as I now understand it and didn't before, I agree with you. Let me characterize a little bit. The executive order, at-least as we believe it will be in place in a few days, establishes these two criteria, one of them having to do with sabotage and so on, which seems to fit very well, for instance, to things connected with light water security matters, but it also poses -- COMMISSIONER KENNEDY: Does it? MR. CASE: Yes. The first level. CHAIRMAN HENDRIE: The first provision. But it also poses the test that such information may not be classified unless it is determined that disclosure of such information,w,ould reasonably be expected to cause at least significant damage to the national security. Now -- COMMISSIONER KENNEDY: I must say, when we are

pv7 l 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Ace-Federal Reporters, Inc. 25 41 willing to accept some damage to the national security, my mind boggles. But we'll go ahead anyway. CHAIRMAN HENDRIE: As I remember, you and I objected to "significant" in that. COMMISSIONER KENNEDY: I continue to. That's what I'm trying to make the record on. As I say, my mind boggles at the notion that the country has reached the point that it was willing to accept some damage to national security. CHAIRMAN HENDRIE: But at any rate COMMISSIONER KENNEDY: It's a contradiction in terms In terms, I think it's unconstitutional. CHAIRMAN HENDRIE: Under the language that we expect to see in the. executive order, I expect -- I can see some little intermediate area where you might have a matter COMMISSIONER KENNEDY: If it turns out that the word is "significant," it could be a very broad area-;;. CHAIRMAN HENDRIE: in which you would feel that here was an area that, indeed, had a connection to the defense and security questions, but you couldn't meet -- what is it "significant" -- at least significant damage test.under the executive order, but the proposed 147 -- section 147 language doesn't impose that test. COMMISSIONER KENNEDY: I find it anomalous. CHAIRMAN HENDRIE: I agree with you that there is, indeed -- there may,.. indeed, be a band in the. ~iddle.

pvB end#6 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 . 22 23 24 Ace-Federal Reporters, Inc. 25 42 If anyone has followed this, would they care to comment whether they agree or disagree?

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4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Ace-Federal Reporters, Inc. 25 43 MR. SHAPAR: I think there are two ways of looking at it. The sabotage of the facility, when you divert material, the ultimate danger is that you're going to get hurt. CHAIRMEN HENDRIE: That certainly -- MR. SHAPAR: You're not interested<' in protecting the material because it's valuable; you're interested in protecting the material because it could hurt people. So I suppose under that analogy, public health and safety would give y,-ou enough authority. CHAIRMAN HENDRIE: Yes, yes, okay, I undersuand. But you're not helping with your two more ways to look at it. COMMISSIONER KENNEDY: I'd like to hear his other way; go ahead. In the int~rests of f~ll public disclosure, I'll have to write you a memo. Let there be no misunderstanding on that score. There will be no lack of dissent in this organi-zation, among the Commissioners or Staff. Let's hear the second way of looking at it. MR. SHAPAR: The second way of reading that, of looking at it, is, that the Executive Order has been in one form or another in effect for a long time, and the Commission has never seen the need to take affirmative action thus far in classifying the stuff. And there's a certain at least

dkw 8 44 interstitial.area where the Executive Order may not do the 2 whole job for you. And it may be well not being able to fore-* 3 4 5 see all situations, to have the rubric of common defense and security as well as health and safety in the statute. CHAIRMAN HENDRIE: That got more clearly to the 6 point we were discussing. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 COMMISSIONER KENNEDY: That got more clearly to the point you were discussing. COMMISSIONER BRADFORD: Let me try one other question as sort of a new way to phrase national security with respect to the power plants. If somebody in fact sabotaged a power plant somewhere, and caused a certain amount of radioactive release, would that normally be construed as harmful to national security It's clearly harmful to public health and safety. MR. SHAPAR: There's a long-standing argument on that point. Some people have considerable diffic uty in associating that with national security.. CHAIRMAN HENDRIE: Let me identify myself as one such. MR. SHAPAR: I formulated it that way for that purpose. COMMISSIONER KENNIEDY: I have a feeling of some suppression here. I want to make sure there's no question Ace-Federal Reporters, Inc. about the freedom of the Staff to speak its mind. 25

dkw 3 45 MR. SHAPAR: On the other hand, there are those 2 who realize that there are very few power reactors that don't 3 supply electricity to military bases. In fact they may on 4 occasion supply the major share to a major metropolitan area. 5 And shutting a major metropolitan area or defense base, in 6 many people's mind, would surely be associated with commondefens and security, or national defense. 7 8 As a matter of fact, it's possible that if someone 9 sabotaged a reactor they might be vulnerable under the Sabotage 10 Act of 1940 for just that reason. That act covers supplying l 1 12 13 14 15 16 17 18 19 20 21 22 23 24 electricity to a military base. CHAIRMAN HENDRIE: I can see an interesting line of argument betwixt prosecution and defense on whether or not the electricity from the plant got to a particular base. (Laughter.) COMMISSIONER KENNEDY: That's correct. I think that's a point you might wish to make. I don't think it's been heard. I'm simply saying that the situation in which one may even contemplate, in the present time frame, the need to do something positive about the coal mines a la 1946 when they were taken over by the government, and operated, I believe, or at least controlled, by the Army, I think, is on the. same grounds. Ace-Federal R_eportets, Inc. It's a matter, not of health of safety, but indeed, 25

dkw 4 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Ace-Federal Reporters, Inc. 25 46 national security. So you know I think it's a fuzzy area, and largely I guess dependent upon the perception of the kind of damag:~ and its. consequences in a particular time frame. Is that fair to say? MR. SHAPAR: I think so. MR. KELLY: The example you cite, though, the Supreme Court through out; that was '52, wasn't it, that Truman did it? Truman in '52. MR. SHAPAR: The Supreme Court said you needed an act of Congress; it was beyond the scope of the Presidential powers. MR. KELLY: He did rely on the.national security though, didn't he? MR. SHAPAR: Yes. It's in the Washington Post this morning, anyway. CHAIRMAN HENDRIE: I'll keep these limitations in mind, lest I get some urge to exercise powers of the chairman that don't exist. COMMISSIONER KENNEDY: I'm just suggesting that good law would make that unnecessary for you. You wouldn't have to worry about that, because the powers wouldn't have been there in the first place, or even, the law would have been so carefully drawn as not to give the impression that those powers were there, which is even more important.

dkw 5 2 3 Anyway, I think we need a *few clarifications. CHAIRMAN HENDRIE: Okay, let me -- let me sample the view of the Commission, or at least as much of it as 47 4 made.it. here* this morning. Vic didn't feel well. He won't 5 be with us... Onthat account in part I'm reluctant to come to 6 .any sort of attempts to round up any sort of final conclusions 7 on* thematter Infact, I think we'll have to meet again when 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 . we can be here. But let me sample for my own guidance whether, on balance, you're inclined to go in these directions. COMMISSIONER BRADFORD: Okay. I had some doubts about the advantage of legislation. And I must say that the last point seems to me to speak fairly strongly in terms of perhaps a more limited bill. But I do have some doubt as to whether the sabotage example of a particular power plant would necessarily call national security considerations into play. engin~er who was there, if that's the case -- The particular CHAIRMAN HENDRIE: Certainly if there's ~n attempt; it doesn't always work. COMMISSIONER BRADFORD: Yet you aren't automatically taking the situation where the power's off at military bases. It would seem to me if the aim is to prevent sabotage, you can do it in terms of real public health and safety consideration Ace-Federal Reporters, Inc. and not leave it outside the scope of a proposed Executive Order 25

dkw 6 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Ace-Federal Reporters, Inc. 25 48 So defense to the general public, going down this little legislative road, I would agree with Mr. Kennedy. And Dick, do you have a general view that you'd care to give? COMMISSIONER KENNEDY:* As I indicated in my comments some weeks ago, I'm prepared to go forward with some legis-lation. I'm not sure that I've seen a draft yet with which I would be comfortable, for the reasons -- some of the questions I've raised this morning. And there's some need to do at least little bit of self-examination on a couple of points because, if for no other reason, I have every reason to believe some of those questions will be raised anyway. And I guess I can assume the answer can appear later. In ;_1tha t case, maybe we can change some of the language. But I do have another sort of broader question. I'm referring back to the letter of June 30th, which was sent to Mr. Brzezinski in which it was said, Congressional support will be necessary to demonstrate the means of protection of the plants, since classification is available under, and can properly be applied, we doubt that a persuasive legislative case could be made. Since legislation, moreover, would not resolve the most important security concern, insuring the trustworthiness of the utility and its personnel, and the licensing participants -- now, what is there about this legislation, this draft, which is going to overcome

dkw 7 2 3 4 5 6 49 those objections? CHAIRMAN HENDRIE: The answer is i.n two parts. First of all, it seems to me much more desirable to seek legislation at this time than to go in the direction of classifying national security matters, reactor plants, and requiring clearance programs. Because people who are in a 7 plant and have to operate under a plant have to know about it if 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Ace-Federal Reporters, Inc. 25 it's classified; they have to be cleared. \\. I have gone to the Chairmen of the Oversight Committee on the House and Senate side, and explained my point of view, and asked if they would view favorably such proposals. And they have both said, yes, they would. And indeed, at our authorization hearing.. in the proposed environment and energy subcommittee, the chairman, in his opening statement, referred to these initiatives, and ecouraged the Commission to come forward with them promptly. So with regard to any speculation in the June 30th letter that legislation was a chancy and dicey business, all I can say is, indeed it is. But I have attempted -- COMMISSIONER KENNEDY: That wasn't the point. CHAIRMAN HENDRIE: -- to see what sort of climate there might be. COMMISSIONER KENNEDY: That wasn't the sort of question I was concerned about. Does thi~ legislation deal with what was characteriz d

50 dkw 8 as the most important security concern, that is, insuring the end #7 2 trustworthiness of utility and other private sector personnel 3 who have access to.the plant. 4 CHAIRMAN HENDRIE: The answer to that is the second 5

  • part of what I was about to say, and that is, yes, -. indeed, 6

7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 it does. It deals with authorizing the Commission to establish programs that make some reasonable assessment, as reasonable as can be made, of the reliability and trustworthiness of the people who have access to the materials, access to the sites, access to the security plants, and are in a position possibly to sabotage it and so on. Ace-Federal Reporters, Inc. 25

CR6468 1 HOFF:sp

  1. 8 2

3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ,Are-Federal Reporters, Inc. 25 51 COMMI:SSI'ONER KENNEDY: On what grounds? National defense and security grounds or public health and safety grounds?* CHAIRMAN HENDRIE: Both.. MR. SHAPAR: Which are the twin grounds now for all regulatory actions of the Commission. COMMISSIONER KENNEDY: Well, all regulatory actions and national security actions involving~ it seems to me, are two different categories. But that's th~ end of that. MR. SHAPAR: But every time you issue a license, you have to make the determination both on security and health and safety. COMMISSIONER KENNEDY: One last question. What relationship does this have to the transportatio associated with materials going to and from a reactor? MR. SHAPAR:. Ta.lks in terms of sites. The Price-Anderson Act considered a train as a floating site. It certainly wasnit intended to get at that situation when it was drafted. I find it somewhat difficult to imagine a clearance program for unauthorized access to a vehicle that's on the road, although I suppose if we gave it some thought we might be able to come up with something

  • COMMISSIONER KENNEDY:

What about the classification of the transportation plans -- excuse me -- whatever we're going to call this -- protection? What about the plans for

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Ace-Federal Reporters, Inc.

25 52 movement? MR. SHAPAR:. I guess I think we could protect it under the statute. COMMISSIONER KENNEDY: Shouldn 1*t we

  • take another look at it'?

My view is, if we're going to do this, it ought to be a single, comprehensive piece that describes the entire problem and deals with it. MR. SHAPAR: I th+/-.hk you're right. If it doesn't happen to cover transportation, we ought to. COMMISSIONER KENNEDY: Has this paper been concurred in? It was phrased interestintly. It says it was sent to all these other outfits. And I think that's interesting and commendable indeed. I hope our mail system is working very well. I hope that they received it. But what did they say abo11t it after they got it? CHAIRMAN HENDRIE: You can't say that it isn't working well. COMMISSIONER KENNEDY: That's right. And since I don't even know whether they even commented on it, I wonder if they had time to go over it in detail and make any comments at all. MR. SHAPAR: Well, of course, three~quarters of it is the same or more.as the proposal that went out on, I guess,

sp3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 . Are-Federal Reporters, Inc. 25 53 January 23rd, about a month ago. The only comments I have seen on it are the General Counsel **s, which I got last Friday. CHAIRMAN HENDRIE: Yes. I think I'm to blame for the coordination problem. I asked that we get this paper on up after hearing;-:f1ri: 1.J Udall's opening statement last week. It seemed to me that we ought to get it on up here and take a look at it, so it came very rapidly. COMMISSIONER BRADFORD: The earlier paper was coordinated with the offices. Does that mean that they concurred in it? MR. SHAPAR: Only that the paper was concurred in. COMMISSIONER BRADFORD: This is 611 now, not 61l(a)? MR. SHAPAR: Which papar. are you referring to? COMMISSIONER KENNEDY1:i _ 611. COMMISSIONER BRADFORD: It was 61l(a). COMMISSIONER KENNEDY: 611. Then he said three~quarters of it was the same. COM.MISSIONER BRADFORD: That's right. What I was saying~~ MR. SHAPAR: It was given to them in advance. MR. PARLER: No one objected to the paper, that I'm aware of. There were no negative comments, plus there were a number of memoranda received from offices which did not object to the substance of the paper

  • COM.MISSIONER KENNEDY:

In light of the transportation

sp4 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 . Are-Federal Reporters, Inc. 25 54 question, for example, it would seem to me useful to get some kind of a firmer statement from the staff to be sure that if we're going to do this, I think we ought to have gone far enough to be sure that we've made a comprehensive ppsition. If we have to come back and tidy up again later -- COMMISSIONER BRADFORD: Do I gather from your concern on this tha:t NRR in fact did not concur? MR. CASE: No, no. The details of the words we had looked,:-~ we hadn't looked at. The point that Commissioner Kennedy has made, we agree with the basic concept. We haven't looked at the details. CHAIRMAN HENDRIE: Okay. There seems to be at least a willingness to consider the proposition.. 1.1.I'm obviously willing.--:- it seems to me it would be useful for Howard and his party to gather with the counsel and his staff and look at some of these comments as they have arisen here at the meeting and as they arose in the counsel's meoranda. I'd be interested to see whether a little more explicit definition of things to be protected is possible in 147. I think the precise formulation in the counsel** s memorandum may not do it. It talks of procedures and such things-~* I think I'm really reluctant to contemplating holding back on the wh&le question of clearances pending what may be years of rule making and subsequent litigation. It does seem to me, however, useful, for you to

sp5 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Ace-Federal Reporters, Inc. 25 55 gather together and look at the way~... at a way of framing that proposition which makes clear that it would not be the Commission's intent to hamper ro make moot or otherwise upset the rule making, and also the structure which would present no more reliability to us in any litigation sense than that we already possess. Such questions as whether the access to the security information clearance should be 147 or the whole shebang should in fact be back in 161~ I, too,, hopefully would like to argue some about, *and;:v.l:etd be interested in the points of view. My proposal, may I say to my colleagues, is that we ask the offices of the agency to get together on this. There will be some time for comments from the other offices, and the Commission will need to meet again. I hope not to prolong the matter too long because we begin to run too far down the authorization trail, or track, but it seems to me that it also is not a desparate matter. It won't blow up if we don't act this afternoon. COMMISSIONER KENNEDY: I would like very much to see the analysis of the relationship between the common defense and security aspects of this bill and the common defense and security aspects as they are related to the executive order, where this bill might in fact be employed and the executive order not be employed, and then the pros and cons of that.

r----- sp6 end#8 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Are-Federal Reporters, Inc. 25 56 I just want to be sure that we understand how far we are extending our reach beyond that of those whose charge it is to protect the common defense and security in a broader sense. CHAIRMAN HENDRIE: Peter, do you have anything? COl';:!MISSIONER BRADFORD: Your proposition defines what I want to know. CHAIRMAN HENDRIE: Okay, in that case, thank you very much. I will say both companies, law offices have produced very scholarly pieces of work,in. a very short time. We're impressed by your ability to respond. (Whereupon, at 11: 20 a.m., the Commission adjourned.)}}

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