NUCLEAR REGULATORY COMMISSION AUTHORIZATIONS AND RELATED REGULATORY ISSUES

MONDAY, MAY 2, 1977

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON ENERGY AND POWER,

COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE,

Washington, D.C. The subcommittee met at 10 a.m., pursuant to notice, in room 2322, Rayburn House Office Building, Hon. John D. Dingell (chairman) presiding.

Mr. DINGELL. The subcommittee will come to order. This is a continuation of the hearings of last Friday at which time the subcommittee began its inquiry into a number of matters relating to the NRC and ERDA. This is the second day of our hearings on NRC's fiscal year 1978 budget authorization.

The focus of today's hearing is on the safeguards issue. The questions that the committee is going to be concerned with, among others, are can the NRC assure the American public that they are protected against nuclear incidents involving sabotage or theft of special nuclear material. The subcommittee today will receive testimony from the General Accounting Office relating to an unclassified version of their report, "Commercial Nuclear Fuel Facilities Need Better Security," which compares NRC to ERDA in their effectiveness in safeguarding special nuclear material.

Our witnesses today will be Mr. Art Tamplin and Mr. Tom Cochran of the National Resources Defense Council, Mr. John Shea from the New York attorney general's office, Mr. Monte Canfield, General Accounting Office, Lee Gossick, Executive Director for Operations, NRC, and Alfred Starbird, Assistant Administrator for National Security for ERDA.

The Chair announces that the order in which witnesses will be heard is to hear all of the non-Federal witnesses as a panel. The Chair advises that we will hear also, Mr. Monte Canfield, who will present the statement on behalf of General Accounting Office, and subsequently we will receive testimony from the witnesses from NRC and from ERDA.

Before we hear from the first witnesses, however, we will, without objection, insert in the record as though read, a statement from our colleague Congressman Stark of California.

STATEMENT OF HON. FORTNEY H. STARK, JR., A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA

Mr. STARK. Mr. Chairman, it has recently come to my attention that the packaging used in the air transportation of plutonium is not capable of withstanding an air crash. I am especially concerned about this problem due to the recent disclosure that this most toxic material is being flown in and out of the Livermore Municipal Airport, located in the district I represent.

The current standards and regulations set by DOT, NRC, and ERDA in regard to the air transportation of plutonium are grossly inadequate. Currently these agencies only require that containers carrying plutonium withstanding such tests as a 30-foot drop onto a steel plate with a terminal velocity of 45 feet per second; a 40-inch drop onto a steel spike; a 30-minute exposure to 1,475° F. heat; and immersion in 3 feet of water. As an example of these agencies' lack of concern for public health and safety in approving these standards, the terminal velocity of a crashing aircraft is 160 miles per hour or 235 feet per second, not the 45 feet per second used in the test. In other words, packaging need only withstand an impact one-fifth as severe as the one which would occur in an actual crash.

What would happen if there was an accident involving leakage of plutonium in a populated area? Plutonium is the most potent carcinogen known to man. The Union of Concerned Scientists have stated that as little as one-millionth of a gram if inhaled could cause cancer in humans. It has already done so in laboratory animals. According to one NRC-commissioned study conducted by the Mitre Corp., if plutonium was leaked in a metropolitan area it could necessitate the evacuation of the entire city and result in thousands of deaths.

At this time we do not have a plutonium container capable of withstanding the impact of a high-speed aircraft accident. Federal agencies have been insensitive to the public safety implications, if not actually negligent, in permitting the air transport of plutonium under such weak safeguards. For this reason, until a comprehensive and objective study has been conducted reviewing the question as to whether the current packaging standards are adequate to protect the publics' health and safety, a moratorium should be placed on all air shipment of plutonium. Thank you, Mr. Chairman.

Mr. DINGELL. If our panel will come forward, Mr. Art Tamolin, Mr. Ted Mason, Mr. Thomas B. Cochran, Mr. John Shea, we will be delighted to receive your testimony.

I count two and we are to have four. We seem to be two light.

STATEMENTS OF A PANEL CONSISTING OF JOHN F. SHEA III, ASSISTANT ATTORNEY GENERAL, STATE OF NEW YORK; AND ARTHUR R. TAMPLIN, WASHINGTON OFFICE, NATURAL RESOURCES DEFENSE COUNCIL

Mr. TAMPLIN. Tom Cochran is not with me. I decided I would take this one today.

Mr. DINGELL. I don't quarrel with that. We are delighted to receive your testimony in any fashion you deem appropriate.

Mr. SHEA. Mr. Mason is unable to attend but he will be submitting a statement for the record.

Mr. DINGELL. Very good. Then, gentlemen, if you will please identify yourselves each for the purposes of the record we will be delighted to receive your statements.

Mr. SHEA. My name is John Shea. I am an assistant with the New York State attorney general's office. The attorney general first wants to thank the subcommittee for the opportunity to present his findings and views on the existing safeguards system for the transportation of special nuclear materials.

First, I would like to address some of the inquiries made by the subcommittee to our office. While President Carter's recent decision to defer the reprocessing and recycling of plutonium does mean that the shipments of SNM will not reach the peak in the next few years originally projected by the industry, the number of shipments will continue to grow significantly and the amount of materials to be in commercial hands from 1977 through 1985 will be substantial. In 1985, I believe, the amount of materials will reach 23,000 kilograms. That is as projected by the Presidential report to the Congress of 1975 regarding domestic and international nuclear safeguards.

I am going to skip through a lot of the written statement prepared by our office for the subcommittee and get right to two or three of the more important points.

Last year ERDA announced that, because a higher degree of security was essential, it would take over the transportation of all of its strategic amounts of nonweapons SNM by October 1976. It has apparently done so. To date the NRC has made no move to similarly remove from commercial transport SNM shipments by its licencees although it has stated that basically, under its regulations, its security arrangements for SNM were the same as the old ERDA arrangements. We believe ERDA's finding of last year that a higher degree of security is essential indicates that there is a high degree of vulnerability for present NRS controls on commercial transport. We are not endorsing the existing ERDA system because we simply don't know exactly what it encompasses.

Mr. Mason was to testify as to the specific inadequacies of existing NRC safeguards and was going to demonstrate why, pending establishment of some other acceptable system, the Federal agencies should immediately implement the use of military personnel, military vehicles, and military bases for the transport of SNM. I hope the subcommittee will have Mr. Mason's statement by noon today.

I will discuss some of the relevant legal and policy issues. The NRC has moved at a painfully slow pace in the area of safeguards. It was only after it was scored by the General Accounting Office on two other occasions that it started to consider a new approach to fix site safeguards. Prior to that, four studies it had commissioned had severely criticized the NRC philosophy, implementation, and enforcement of safeguards at fixed sites.

GAO was hard pressed to understand how, in light of the evidence in the four studies the NRC had commissioned. The NRC could say private guards constitute an adequate safeguard force. I believe certain findings of those studies are very applicable to the commercial transportation of SNM.

Specifically the U.S. Marshal's Service found the guard forces had weak allegiance, a high turnover rate, and, among other things, inferior equipment, weak legal authority, poor rapport with local police, poor mobility, and little training. The International Association of Chiefs of Police concluded that the State and local law enforcement agencies would be ineffective in an emergency because they had not been formally coordinated into the safeguard system. Our experience in New York confirms all of this.

For example, during the course of an investigation by our office in preparation for a suit against the Nuclear Regulatory Commission and ERDA it was discovered that on numerous occasions "fake" armored vehicles were used for the transport of SNM. It also became clear that with any effort at all could obtain detailed information regarding an air shipment of SNM. a terrorist group or criminal group On one occasion we found that 124 people in 11 public and private agencies knew the details of a shipment before it occurred. Some of the individuals in this group never had anything approaching a background check. This does not include the janitors and other maintenance people in the various buildings who had access to lists and bulletin boards.

The NRC's only response to date is that it does not believe the widespread dissemination of information constitutes a danger. Mr. Mason's opinion is that this is probably the most important aspect of physical security. If you can have little or no dissemination of information the dependence on an elaborate safeguards system decreases. The more widespread the dissemination of information the more important your safeguards system becomes.

The irony is that the Port Authority of New York and New Jersey, the agency which should have known all of the details of the various shipments, was on certain occasions never told a shipment was coming through at all. So we can only view the NRC's stated reliance on local agencies for response capability and clean-up with a certain degree of skepticism.

There is a big difference between the NRC's view as to safeguards and the real world. It was only recently that the NRC reviewed for regulatory purposes the postulated threat for fixed sites. Up until recently they had accepted a threat of only one insider or three wellarmed, well-trained outside attackers who might possess inside knowledge. The NRC has admitted that a number of existing nuclear facilities would not stand a chance against an attack of this force.

GAO has concluded that perhaps all reactor sites would succumb to such an attack. In a petition filed by the Natural Resources Defense Council, the NRC was asked to immediately require licensees to employ safeguards measures which would protect against substantially larger groups. This was based in part on the four studies I mentioned, some of which projected a credible threat of up to 15 well-armed, welltrained individuals. The NRC response was in part as follows:

At present we are not convinced that the empirical or technical means exist to assess the threat with such precision to establish as mandatory one specific level of safeguards and no higher or lower level.

So the NRC chose to do nothing. It disregarded the studies it had commissioned because it knew of no band of well-trained attackers

with a present intention to divert SNM and it refused to accept such a threat as credible.

The NRC projects only the use of legally obtainable weapons. We submit that if a terrorist or criminal band is serious and wants to divert SNM, it would use the most powerful weapons it could get its hands on.

There were a number of articles recently in journals dealing with the development of hand-held weapons. The day of the infantryman has returned and the caliber of weapons that can be carried by a single man are rather awesome. Apparently a great number of these weapons are available on the black market.

As to enforcement, a point which I believe this subcommittee should address, the NRC now states that it requires the use of five guards for a SNM shipment by road, an armored car or equivalent, and an escort vehicle, two at night. However, these requirements are not actually in the NRC regulations. Even if they were, the domestic road shipments are only periodically inspected by NRC.

Similarly, as to ERDA, the GAO has found that enforcement is very weak. ERDA requirements specify that security surveys are to be made on 10 percent of shipments. Another GAO report which I urge the subcommittee to read found that only 3 percent of the shipments were inspected in 1975 and 5 percent in 1976.

Mr. DINGELL. Which document are you referring to?

Mr. SHEA. The GAO report, "Unclassified Digest of Classified Report: Safety and Transportation Safeguards at Rocky Flats Nuclear Weapons Plant." It was released in January of this year.

Another point that concerns us is that the NRC has to date refused to put certain amounts of SNM under safeguards control. This is discussed in my written statement. I won't go into detail on that issue now, but basically shipments of less than five kilograms of highly enriched uranium are not protected by safeguards requirements, and likewise, less than two kilograms of plutonium are not protected.

We are in sharp disagreement with the NRC as to the toxicity of plutonium and why less than two kilograms should be subjected to safeguards so as to prevent deliberate dispersal. Moreover, the NRC regulations fail to recognize the psychological aspect of SNM seizure in a city like New York. Finally, the regulations ignore the factor of multiple thefts.

The only argument NRC has made to date why it should not temporarily utilize military systems to protect these materials is under the Posse Commitatus Act. NRC claims the Posse Commitatus Act prohibits the use of armed forces for the protection of private property. However, in the NRC's own administrative case law regarding the licensing of nuclear reactors, there are decisions which state that the licensee may rely on the U.S. military forces for protection against attacks by saboteurs. I believe there is an unjustifiable inconsistency between the allowance of the use of military personnel at fixed sites and the disallowance of it for transport.

My closing points will again be made in response to some of the subcommittee's inquiries. The Attorney General supports the President's decisions on plutonium recycle, the Barnwell facility and breeder reactor program. He believes the Congress should now reallocate fund