Clements on July 6 told the three-member board that the hearing “has significant implications for U.S. nuclear nonproliferation policy.” He requested in writing that it “reconsider the decision to close the entire proceeding.”
In an April 4 scheduling order, the ASLB members designated for this license application -- Chairman Paul Ryerson and members James Jackson and Michael Garcia -- explained that they intended to keep the session closed “because of the likelihood that nonpublic information will be addressed.”
Detailed discussion of the company’s “Global Laser Enrichment” process could involve information proprietary to GE-Hitachi -- disclosure of which might endanger a competitive edge that its unique technologies offer -- and specifics that involve national security sensitivities, NRC and industry officials have said.
“While we would like to be as transparent as possible … the only practical thing to do with this mandatory hearing is to close the hearing to the public in its entirety,” Ryerson said during a June 28 conference call, according to an NRC transcript provided to Global Security Newswire. The session is considered mandatory because it pertains to a major licensing action.
Classified and proprietary information about technology safety, laser enrichment processes, and export controls are likely to be laced throughout the hearing, the chairman said. “It really would not be practical to try to make very limited parts of this hearing available to the public,” Ryerson said. “We'd be constantly sending people out of the room.”
The administrative judges did not appear to consider the option of initially holding an open session that would then be followed by a single, closed session, as is frequently done by U.S. congressional committees that handle classified material.
The board chairman noted that a redacted transcript of the hearing would be made available at a future date and that the board’s ultimate ruling on the application would also be released -- “at the very least, an edited version of our final decision, possibly, the entire final decision,” he said.
During the conference call, which was open to the public in listen-only mode, Ryerson asked the participants whether they would object to a closed evidentiary hearing.
“Your Honor, we do not object,” said Donald Silverman, an attorney representing GE-Hitachi. “We agree completely.”
“Your Honor, that's fine with us,” said Marcia Simon, an NRC lawyer.
Clements, who serves as his organization’s nonproliferation policy director, differed with that view. He called it “very disconcerting” that the hearing would be closed for what appeared to be reasons of convenience or continuity.
Several NRC staff briefings under review during the hearing have already been made public, “indicating that much will be discussed which is not of a sensitive nature,” he said in his written appeal.
Keeping a portion of the hearing open for public deliberation on nonsensitive information facing the board might help the U.S. public hold the licensing body accountable for national-security concerns as it makes its upcoming decision, Clements said.
“The hearing may in the eyes of the licensing board be about a single license, but in fact their decision could have a lasting impact on U.S. nonproliferation policy,” he told GSN last week in e-mailed comments. “The hearing board should thus strive to open the hearing as much as possible.”
Two former NRC commissioners, asked for comment this week, agreed.
“If the licensing board cared about informing the public, it would have structured the hearing to minimize the classified portion,” said Victor Gilinsky, an independent consultant who served two terms on the commission through 1984. “Beyond that, closing the hearing entirely out of fear that it could aid would-be proliferators underlines how wrong the NRC was to reject the proliferation issue in the licensing proceeding.”
“Closing entire licensing hearings limits public discussion of the dangers. It doesn't limit the dangers that flow from widespread deployment [of] and worker access to sensitive designs and equipment,” said Peter Bradford, who also sat on the commission in the late 1970s and early 1980s. “It was, after all, one man's access to sensitive enrichment technology in Europe that started proliferation chains leading to [nuclear-weapon efforts in] Pakistan, Libya, Iran and North Korea.”
Bradford, now a Vermont Law School adjunct professor, was referring to Pakistani scientist Abdul Qadeer Khan, who led a black-market ring for centrifuge components and other sensitive nuclear technologies believed to have begun in the 1980s (see GSN, Jan. 25).
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