The design threats in the safeguards supplement to GESMO are divided into an internal (diversion) and an external (assault) threat. Many parameters or considerations must be taken into account in describing or specifying such threats. To simplify these descriptions, we have assumed that all of these parameters (e.g., motivation, training, arms, equipment, employment position, etc.) are fixed at worst-case values with respect to safeguards, and that the only remaining variable is the number of people involved in the threat. For a nominal or baseline threat, as a point of departure, we have assumed that the internal and external threats are two and six persons, respectively. The range of numbers suggested by threat researchers, expert opinion, and partisan comments generally lie within a factor of two, up and down, from this baseline specification. Thus, the lowest levels of design threat being considered in GESHO are, for an internal threat, one person and, for an external threat, three persons. I don't know of any serious Suggestion that these levels are too high and that we should consider even lower levels as design threats for adequate safeguards. The logical conclusion from all this is that current safeguards must be presumed inadequate if they cannot effectively counter internal threats of one person or external threats of three persons. It does not, of course, say that they are adequate if they can effectively counter those same threats. But there should be a higher urgency to correct what is clearly inadequate, even before finally determining what is adequate. Thus, while we are awaiting further judgments about what may be a prudent design threat level, I think we are obliged to act promptly where safeguards are insufficient against threat levels that are at the lower extreme of what may be judged prudent.. The tough questions we may soon have to answer for ourselves about currently licensed facilities (and associated transportation) are these: 1. Are present material control procedures sufficient to prevent, with a high degree of assurance, the theft of more than five formula kilograms of SM by any single employee in any position in any single theft or in any continuing series of thefts over a period of up to one year? 2. Are present physical protection procedures sufficient to prevent, with a high degree of assurance, the theft of more than five formula kilograms of Sill by means of a well-planned and coordinated assault by three persons, one of whom may be an employce in collusion, having the equivalent of military training and equipment? VI-32 11 This is in response to your petition of February 2, 1976, captioned "Petition for Adoption of Emergency Safeguard Measures or, Alternatively, for Revocation of Licenses." Your petition concerns the sixteen commercial licensees who are presently authorized to possess and transport strategic quantities of special nuclear material, two exempt freight forwarders, and one common carrier with approved transportation plans. The licensees work with special nuclear materials subject to NRC regulations for a variety of purposes, but primarily for the production of reactor fuel for U. S. naval vessels and for energy research and development projects. Based upon your assessment of what you have termed the "maximum credible threat of theft," your petition asks, among other things, for immediate implementation of "emergency safeguards measures." You ask, in the alternative, that these outstanding licenses be summarily revoked, and that federal authorities take immediate possession of the special nuclear material. Your petition was addressed to the Commission and, as appropriate, to me as Director of the Office of Nuclear Material Safety and Safeguards. Your petition was promptly published in the Federal Register with an invitation for submission of public comment. 41 Fed. Reg. 5357. Recognizing your petition to be, in substance, a request for enforcement action pursuant to 10 CFR 2.206 and 2.202, the Commission referred it to me on February 4, 1976, with instructions to consider it and all comments provided thereon. In the interim, the Commission instructed my Office to continue our comprehensive review of safeguards measures at the licensee facilities in question, a review already underway when your petition was filed. My office was also instructed to continue to take any actions within our delegated authority deemed necessary to meet regulatory responsibilities, and to promptly inform the Commission Enclosure D whether any special regulatory action by it is warranted prior to a determination of the merits of the petition. The Commission directed me to make that determination as soon as feasible following receipt of public comments. My office immediately reviewed your petition and determined that it contained no information that was not already known to us. On that basis and on the basis of the information then available to us from our on-going review of the facilities in question and other sources, I advised the Commission by memorandum dated February 11, 1976, that there was no basis for immediate imposition of the kinds of "emergency safeguards measures" contemplated by your petition. A copy of that memorandum was placed in the Commission's Public Document Room and another copy is enclosed for your reference. Since that time, we have reviewed and evaluated comments from other interested persons and organizations and from the potentially affected licensees of special nuclear materials; these comments have been placed in the Public Document Room. We have also evaluated additional information now available to us from our on-going review of potentially affected facilities. I am now in a position to make my determination with respect to your requests for enforcement actions, pursuant to 10 CFR 2.206(b). Your specific requests for action are set forth in paragraph 7, pp. 10-12 of your petition. You ask, first, for an immediate review of the adequacy of safeguard programs to protect against theft at facilities licensed to possess strategic quantities of special nuclear material. Such a review was underway before your petition was filed and is continuing. The crux of your request, as I understand it, is for immediate implementation of "emergency safeguard measures" at licensee facilities, which you suggest might include dispatchment of U.S. Marshals to protect such facilities, elimination of transportation of special nuclear material, other than that essential to national defense, and use of U.S. Marshals to accompany necessary national defense shipments. In the alternative, if the emergency measures you suggest cannot be quickly implemented or can be implemented only with undue difficulty or expense, you ask that the outstanding licenses authorizing possession of strategic quantities of special nuclear materials be summarily revoked, and that the material be recaptured by federal authorities. For the reasons that follow, and on the basis of relevant information presently available to me, I have determined that there is no factual or legal basis for granting these requests for summary action. - - dis is As I am sure you are aware, I do not possess unfettered discretion to impose additional requirements on outstanding licenses or to modify or revoke such licenses solely on the basis of your organization's perception of where the public interest lies. On the contrary, my authority to proceed under 10 CFR 2.202 is circumscribed by the terms of that regulation and by established principles of law. I note that your principal emergency measure suggestion patchment of U.S. Marshals to licensed facilities clearly beyond my authority and that of the Nuclear Regulatory Commission. The U.S. Marshals are supervised and directed by the Attorney General and it does not appear that the authority of the Marshals would extend to protection of privately owned businesses under existing law. In this connection, I refer you to the provisions of section 569 of Title 28 of the United States Code. More importantly, your petition does not allege, and information presently available to us does not disclose, any substantial violations of NRC regulations. Apart from such violation situations, I am authorized to proceed summarily under 10 CFR 2.202 in exceptional situations, including those involving immediate hazards to public health or safety, but only where there is a substantial factual basis for such action. In my judgment, that necessary factual basis is lacking in this case. Pursuant to 2.206 (b), it is my decision not to insitute any proceedings with respect to your requests for emergency measures or summary revocation actions. For the reasons given hereafter, I believe that the present safeguards programs of the licensees in question are adequate to provide a reasonable assurance of public health and safety and are not inimical to the common defense and security. In rejecting your requests for emergency measures and summary revocation actions, I do not mean to imply that there is no legitimate basis for concern about the adequacy of present safeguards. I am concerned about their adequacy, particularly for the future. I know that more can be done in this area, and I believe that my office will be proposing significant new regulatory requirements in the near future, Council, Inc. both with reference to specific sites and generally applicable requirements. The development of more refined safeguards criteria and standards is the principal purpose of our on-going reviews and studies. In my judgment, however, the precipitous actions you request are unnecessary and fail to take into account the competing interests of the licensees and the broader public interests involved. I will summarize the basis for my judgment with reference to the present factual situation, current regulatory requirements, and the actions we are taking pursuant to our Congressional safeguards mandate. Today's licensed nuclear power industry is one which depends upon low-enriched uranium; that is, uranium enriched to approximately three percent in the fissile uranium 235 isotope. The current industry consists of fifty-seven licensed power reactors (one operating on high-enriched uranium) and nine low-enriched uranium fuel fabrication facilities. A nuclear explosive cannot be made of such lowenriched uranium, although it is classified for regulatory purposes as "special nuclear material." There are sixteen licensees in the private sector who are authorized to possess strategic quantities of plutonium and high-enriched uranium. These kinds of special nuclear material, if stolen in sufficient quantities, could be fashioned into a crude nuclear explosive, if the thieves had the requisite technical skill and equipment. The greatest percentage of this high-enriched uranium is government-owned and is being processed in licensed facilities for national security programs. High-enriched uranium for commercial purposes (about six percent of the total quantity in the private sector) is mostly in storage vaults and is likely to stay there unless additional high temperature gas-cooled reactors are built and operated. A small amount of high-enriched uranium is being used to fabricate research reactor fuel. About half of the plutonium in commercial plants is government-owned. Certain licensed facilities process plutonium for development programs related to the liquid metal fast breeder reactor. Otherwise, the material is being used in small quantities for R&D purposes or is in vault storage. Thus, the amount of special nuclear material, plutonium and high-enriched uranium, being used outside national security |