Federal Register / Vol. 66, No. 34 / Tuesday, February 20, 2001 / Proposed Rules 10839

5See, e.g., Limerick Ecology Action v. NRC, 869

F.2d at 739; San Luis Obispo Mothers for Peace v.

NRC, 751 F.2d 1287, 1300–01 (D.C. Cir. 1984).

case law for the proposition that NEPA

does not require the consideration of

remote and speculative risks.5 The court

in the Limerick proceeding rejected the

NRC’s argument that severe accidents

were remote and speculative because

the court could find no basis for the

conclusion in the NRC record. Id. at

739–741. The Commission is not

prepared to reach the conclusion that

the risks of all severe accidents in the

context of license renewal are so

unlikely as to warrant their elimination

from consideration in our NEPA

reviews. Even though there is a low

probability of a severe accident, the

NRC has invested considerable

resources toward understanding

potential severe accident sequences and

alternatives for further reducing the

probability of and mitigating the

consequences of severe accidents, but

has not yet established an agency record

that severe accidents may be eliminated

from NRC’s NEPA reviews. In reviewing

licensing actions outside of the license

renewal context, it may be possible for

the NRC to conclude that certain severe

accident scenarios are remote and

speculative and do not warrant detailed

consideration for the purposes of the

NEPA review for that particular NRC

action. However, for the purposes of

consideration of severe accidents in the

context of license renewal NEPA

reviews, the NRC staff has not

developed the necessary basis for

concluding that such occurrences are

remote and speculative, and thus

inappropriate for NRC review under

NEPA. This position does not alter the

conclusion that, in light of margins of

safety and defense-in-depth, the

likelihood of radiological offsite

consequences is small.

In its comments, the petitioner cited

two cases which, in its view,

demonstrate that NEPA’s requirements

are satisfied where potential impacts to

the environment are remote and

difficult to quantify and ongoing

regulatory safeguards are in place to

protect against potential risks of impacts

into the future. Environmental Defense

Fund v. Andrus, 619 F.2d 1368 (10th

Cir. 1980) reh’g en banc denied; and

Citizens for Environmental Quality v.

Lyng, 731 F. Supp. 970 (D. Colo. 1989).

While these cases may provide more

support for the general proposition that

remote and speculative impacts need

not be considered under NEPA, they do

not displace the Commission’s

responsibility to make the threshold

determination based on the NRC record

that severe accidents are remote and

speculative for the purpose of license

renewal reviews. As discussed, the

Commission is unable to reach that

conclusion.

For the reasons cited in this

document, the Commission denies the

petition.

Dated at Rockville, Maryland, this 13th day

of February, 2001.

For the Nuclear Regulatory Commission.

Annette L. Vietti-Cook,

Secretary of the Commission.

[FR Doc. 01–4104 Filed 2–16–01; 8:45 am]

BILLING CODE 7590–01–P

NUCLEAR REGULATORY

COMMISSION

10 CFR Parts 73, 76, and 95

[Docket No. PRM–76–1]

United Plant Guard Workers of

America; Denial of Petition for

Rulemaking

AGENCY: Nuclear Regulatory

Commission.

ACTION: Denial of petition for

rulemaking.

SUMMARY: The Nuclear Regulatory

Commission (NRC) is denying a petition

for rulemaking submitted by the United

Plant Guard Workers of America (PRM–

76–1). The petitioner requested that the

NRC amend its regulations concerning

security at the gaseous diffusion plants

to address sites that have both special

nuclear material security concerns and

protection of classified matter concerns;

to require that these facilities be able to

detect, respond to, and mitigate threats

of a sabotage event; and to require that

the security force be armed and

empowered to make arrests in limited

situations. The petitioner believes that

these amendments are necessary to

address the protection of classified

information, equipment and materials,

and special nuclear material at the

gaseous diffusion plants.

ADDRESSES: Copies of the petition for

rulemaking, the public comments

received, and NRC’s letter to the

petitioner may be examined at the NRC

Public Document Room, 11555

Rockville Pike, Rockville, MD. These

documents also may be viewed and

downloaded electronically via the

rulemaking website.

Documents created or received at the

NRC after November 1, 1999 are also

available electronically at the NRC’s

Public Electronic Reading Room on the

Internet at http://www.nrc.gov/NRC/

ADAMS/index.html. From this site, the

public can gain entry into the NRC’s

Agencywide Document Access and

Management System (ADAMS), which

provides text and image files of NRC’s

public documents. For more

information, contact the NRC Public

Document Room (PDR) Reference staff

at 1–800–397–4209, 301–415–4737, or

by e-mail, pdr@nrc.gov.

FOR FURTHER INFORMATION CONTACT:

Merri Horn, Office of Nuclear Material

Safety and Safeguards, U.S. Nuclear

Regulatory Commission, Washington,

DC 20555–0001, telephone (301) 415–

8126, e-mail mlh1@nrc.gov.

SUPPLEMENTARY INFORMATION:

The Petition

On May 10, 2000 (65 FR 30018), the

NRC published a notice of receipt of a

petition for rulemaking filed by the

United Plant Guard Workers of America.

The petitioner requested that the NRC

amend its regulations concerning

security at the gaseous diffusion plants

to address sites that have both special

nuclear material security concerns and

protection of classified matter concerns;

to require that these facilities be able to

detect, respond to, and mitigate threats

of a sabotage event; and to require that

the security force be armed and

empowered to make arrests in limited

situations. The petitioner believes that

these amendments are necessary to

address the protection of classified

information, equipment and materials,

and special nuclear material at the

gaseous diffusion plants.

First, the petitioner asserted that the

regulations do not adequately address

sites that have both nuclear material

security concerns and classified matter

concerns. The petitioner believes that

the applicable regulations were not

appropriately merged in the regulations

governing gaseous diffusion plants to

address a site that covers the protection

of classified information, equipment

and materials, and special nuclear

material.

As an example, the petitioner stated

that the Controlled Area Fence Line

does provide a minimum level of

protection against the unauthorized

removal of special nuclear material

contained in 10- and 20-ton cylinders.

However, the petitioner questioned

whether the fence line adequately

protects against the unauthorized

removal of restricted information,

equipment, and other materials or the

unauthorized access to these types of

materials.

The petitioner asserted that other

facilities that possess Category III

quantities of special nuclear material

regulated by the NRC do not share the

10840 Federal Register / Vol. 66, No. 34 / Tuesday, February 20, 2001 / Proposed Rules

level of concern for classified matter,

equipment, and technology that exists at

the gaseous diffusion plants. The

petitioner suggested that the regulations

concerning security programs at the

gaseous diffusion plants, such as escort

requirements and physical security

measures, should be amended to be

made more stringent to protect this

technology. The petitioner did not offer

any specifics as to how the regulations

should be amended.

Second, according to the petitioner,

the NRC typically relies on local law

enforcement agencies to respond to

incidents of workplace violence or

sabotage at material licensee facilities.

The petitioner stated that the scope and

complexity of a gaseous diffusion plant

makes it far different from other types

of NRC-licensed materials facilities.

Furthermore, the petitioner believes that

these differences result in unique

problems in relying on local law

enforcement agencies to protect such a

facility from violent incidents. The

petitioner indicated that local law

enforcement agencies in the vicinity of

the Paducah plant have stated, for the

record, that they should not be viewed

as a replacement for on-site security

because of their lack of knowledge of

the plant site, the types of hazards

contained in the plant, and their limited

resources. The petitioner presented two

letters, attached to the petition, from

law enforcement agencies in the vicinity

of the Paducah plant that support this

contention.

Because of the unique nature of

gaseous diffusion plants and the

importance of their operation, the

petitioner believes that a violent

incident or an act of sabotage would

affect national security. The petitioner

also asserted that, because of the many

radiological and toxicological hazards

associated with these plants, an act of

sabotage could adversely affect the

safety of plant workers and the public.

The petitioner believes that these

dangers were not addressed as part of

the certification process. According to

the petitioner, current NRC standards do

not require a security force that is

capable of preventing a sabotage event.

The petitioner requested that the

regulations be amended to require that

security forces at the gaseous diffusion

plants be able to detect, respond to, and

mitigate violent incidents or acts of

sabotage.

Last, the petitioner noted that current

regulations do not require that the

security force be armed or empowered

to enforce the Atomic Energy Act. The

petitioner requested that security

officers at the gaseous diffusion plants

be armed and empowered to make

arrests in limited situations, such as for

violations of the Atomic Energy Act.

Public Comments on the Petition

The notice of receipt of the petition

for rulemaking invited interested

persons to submit comments. The

comment period closed on July 24,

2000. NRC received one comment letter

from the United States Enrichment

Corporation (USEC), the operator of the

gaseous diffusion plants. The

commenter was opposed to the petition.

The commenter believes that the

petitioner does not provide a solid and

specific basis for revising the

regulations to increase security at the

gaseous diffusion plants. The

commenter points out that the petitioner

has not provided specific

recommendations regarding what

revisions should be made to current

security regulatory requirements to

address the concerns outlined in the

petition. The commenter states that the

security program at the gaseous

diffusion plants exceeds NRC

requirements for the protection of

classified matter and special nuclear

material of low strategic significance.

The commenter asserts that research by

the NRC, United States Department of

Energy (DOE), and United States Federal

Bureau of Investigations (FBI) does not

indicate a higher potential threat level

for the gaseous diffusion plants than for

other fuel cycle facilities with similar

nuclear materials. The commenter states

that the requested changes would also

affect other similar facilities and that

implementation of the protective

strategies described by the petitioner

would result in an increase in cost for

all subject facilities and that the cost is

not justified based on the lack of

increased associated threat. The

commenter believes that the level of

security is adequate to protect classified

matter and special nuclear material at

the gaseous diffusion plants.

Reasons for Denial

The NRC is denying the petition

because we have determined that

current NRC regulations and certificate

conditions governing the gaseous

diffusion plants provide adequate

protection for both classified matter and

special nuclear material at these plants.

The gaseous diffusion plants operate

under certificates of compliance issued

under the provisions of 10 CFR part 76.

Furthermore, they are subject to the

physical protection provisions of 10

CFR part 73 and the security provisions

of 10 CFR part 95. The gaseous diffusion

plants process Category III levels of

special nuclear material as described in

10 CFR 73.2. Category III levels require

a minimum level of security, as

specified in 10 CFR 73.67, to minimize

the possibility for the unauthorized

removal of special nuclear material. The

specified level of security is intended to

be consistent with the potential

consequences of such an action. The

regulations in Part 95 establish security

requirements for the protection of

classified matter up to and including

SECRET-Restricted Data and are

consistent with national policy. The

gaseous diffusion plants are also

required to follow the security plans

approved by the NRC.

The petitioner suggested three

separate areas for changing the

regulations: (1) Require more stringent

regulations concerning security

programs at the gaseous diffusion

plants, such as escort requirements and

physical security measures; (2) require

that these facilities be able to detect,

respond to, and mitigate threats of a

sabotage event; and (3) require that the

security force be armed and empowered

to make arrests in limited situations.

1. More Stringent Regulations

NRC believes that the petitioner is

incorrect in asserting that the

regulations do not adequately address

sites with requirements for both

physical protection of special nuclear

material and protection of classified

matter. The NRC staff was not able to

identify any conflict with the provisions

of Parts 73 and 95, nor was the staff able

to identify any gaps in coverage. The

combination of special nuclear material

of low strategic significance (SNM–LSS)

and classified material does not create

any new threat to the protection of

classified material. Part 95 requires that

access to classified matter be limited to

authorized persons who have an

appropriate security clearance and a

need-to-know for the classified matter.

Individuals without the appropriate

level of clearance and/or need-to-know

must be escorted at all times by an

authorized individual. Part 95 requires

that all cleared employees be provided

with security training. Part 95 also

requires that classified matter be stored

in locked vaults or safes and requires a

watchman to check the safes on an

established frequency. The escort of

uncleared individuals is already

required by Part 95. The provisions of

Part 95 provide adequate protection of

classified matter and are consistent with

national policy (i.e., National Industrial

Security Program Operating Manual.)

As an example, the petitioner

suggested that the security fence does

not provide adequate protection of

restricted information. (The NRC

assumes that the petitioner is actually

Federal Register / Vol. 66, No. 34 / Tuesday, February 20, 2001 / Proposed Rules 10841

referring to restricted data or national

security information as there is no

category called restricted information.)

The petitioner does concede that

unauthorized removal of SNM–LSS is

not an issue. The security fence is not

required by Part 95, although it does

provide some protection since it

prevents unauthorized individuals from

gaining access to the facility. Only

employees and authorized individuals

are allowed access to the facility. All

employees and visitors are required to

enter and exit the facility through

portals manned by security personnel.

Security personnel do have the right to

search items entering and leaving the

facility. These provisions, as well as

others, ensure that classified matter is

used, stored, processed, reproduced,

transmitted, transported, and destroyed

only under conditions that will provide

adequate protection and prevent access

by unauthorized persons. The petitioner

did not provide any information

demonstrating that more stringent escort

requirements or other security measures

were necessary for the gaseous diffusion

plants. The increased burden that would

be imposed by any new regulations

would not appear to be warranted. The

provisions of Parts 73 and 95, coupled

with the approved security plans for the

protection of classified matter and for

physical protection, will continue to

provide the basis for adequate

protection of classified matter and

SNM–LSS possessed by the gaseous

diffusion plants.

2. Detect, Respond to, and Prevent

Sabotage

In Part 73, the requirements do reflect

the need for addressing radiological

sabotage for Category I facilities. A

Category I facility is a facility that

possesses a formula quantity of special

nuclear material of strategic significance

(e.g., 5 kilograms of uranium enriched to

20 percent or more in the uranium-235

isotope) and a Category III facility is one

that possesses special nuclear material

of low strategic significance (uranium

enriched to less than 10 percent in the

uranium-235 isotope, with limited

quantities at higher enrichments). The

gaseous diffusion plants are classified as

Category III facilities. When the

regulations in Part 73 were

promulgated, the NRC did not consider

that a potential threat for radiological

sabotage existed for Category III

facilities. Therefore, Part 73 does not

require that these facilities protect

against radiological sabotage other than

ensuring the security of radioactive

material under 10 CFR part 20. The NRC

is not aware of any changes in the threat

environment that would warrant a

change in this conclusion and,

therefore, would warrant a change in the

physical protection requirements for

Category III facilities. Additionally,

during the promulgation of Part 76,

sabotage was not considered to be a

credible threat and, therefore, was not

addressed in the regulations. The staff

evaluated whether the classification of

the gaseous diffusion plants as Category

III facilities was appropriate since the

requested change to the rules would

result in imposing the equivalent of

Category I physical protection

requirements on the gaseous diffusion

plants. Currently, the gaseous diffusion

plants do not have a national defense

role. The production from these plants

supports the commercial nuclear

industry. The material is unattractive

from a proliferation standpoint because

of its low enrichment and its storage

configuration (e.g., 14-ton cylinders)

reduces the likelihood of theft or

diversion compared to Category I

material. The staff has not identified any

change in the threat environment that

would warrant a change to the

requirements for the gaseous diffusion

plants. The staff concluded that the

classification of the gaseous diffusion

plants as Category III facilities was

appropriate.

The petitioner also expressed concern

that local law enforcement is viewed as

a replacement for on-site security

response capability. On-site security

would be the first to respond; local law

enforcement would be contacted to

provide backup if deemed necessary.

Both gaseous diffusion plants have

agreements in place with local law

enforcement agencies. The local sheriff,

State police, and FBI have also

participated in emergency exercises at

the plants. In addition, if a specific

threat were to be uncovered, the facility

would be provided with the information

and could increase security as

necessary. State and Federal law

enforcement officials would be available

to respond in case of a serious threat.

The petitioner has not provided any

new information for NRC consideration

that could form an adequate basis to

require that the plants be able to detect,

respond to, and mitigate violent

incidents or acts of sabotage. There is no

known change in the threat

environment that would warrant a

change to the regulations or a change in

classification for the gaseous diffusion

plants from Category III to Category I.

The increased burden that would be

imposed on the certificate holder, the

NRC staff, and other stakeholders is not

warranted based on current information.

3. Armed Security Force

NRC physical security requirements

vary according to the risk posed by the

radioactive material possessed and do

not require armed guards for the

operations under NRC regulation at the

gaseous diffusion plants. There is no

known threat that would warrant

requiring armed guards at Category III

facilities, including the gaseous

diffusion plants. The operations at the

gaseous diffusion plants under NRC

regulation involve SNM–LSS, and NRC

regulations do not require the presence

of armed guards for the adequate

protection of SNM–LSS. However, NRC

regulations do not prohibit carrying of

firearms. In fact, the guards at the

gaseous diffusion plants do carry

firearms. USEC has committed to the

presence of armed guards in its NRCapproved physical protection plans. The

NRC currently does not have the

authority to authorize certificate holders

and their employers and contractors to

have arrest authority for protection of

common defense and security. However,

DOE does have the authority and has

now completed issuance of weapons

authorization cards for the guard forces

at the gaseous diffusion plants. The

remedy requested by the petition (i.e.,

rulemaking) would appear to be

unnecessary as the desired outcome

(armed guards and arrest authority) has

been achieved by means other than

rulemaking.

In conclusion, no new information

has been provided by the petitioner that

calls into question the classified

information and physical protection

requirements. Existing NRC regulations

provide the basis for reasonable

assurance that the common defense and

security is adequately protected.

Additional rulemaking would impose

unnecessary regulatory burden and does

not appear to be warranted for the

adequate protection of the common

defense and security.

For the reasons cited in this

document, the NRC denies this petition.

Dated at Rockville, Maryland, this 31st day

of January, 2001.

For the Nuclear Regulatory Commission.

William D. Travers,

Executive Director for Operations.

[FR Doc. 01–4105 Filed 2–16–01; 8:45 am]

BILLING CODE 7590–01–P