LR-N23-0073, Request for Exemption from Specific Requirements in New 2023 Security Rule
| ML23324A308 | |
| Person / Time | |
|---|---|
| Site: | Salem, Hope Creek  |
| Issue date: | 11/17/2023 |
| From: | Public Service Enterprise Group |
| To: | Office of Nuclear Material Safety and Safeguards, Office of Nuclear Reactor Regulation, Document Control Desk |
| Shared Package | |
| ML23324A306 | List: |
| References | |
| LR-N23-0073 | |
| Download: ML23324A308 (1) | |
Text
November 17, 2023 LR-N23-0073 10 CFR 73.5 Attachment 1 Request for Exemption from Specific Requirements in New 2023 Security Rule.
(9 Total Pages)
November 20, 2023 LR-N23-0073 10 CFR 73.5 Request for Exemption from Specific Requirements in New 2023 Security Rule.
A. BACKGROUND On March 14, 2023, the Nuclear Regulatory Commission (NRC) issued a Final Rule entitled Enhanced Weapons, Firearms Background Checks, and Security Event Notifications.1 This final rule became effective April 13, 2023, with a compliance date of January 8, 2024. The final rule contains several new elements such as:
New terminology and associated requirements covering conditions adverse to security New definitions of the terms contraband and time of discovery in 10 CFR 73.2 New point of contact requirements with the Federal Aviation Administration (FAA)
Changes reporting requirements applicable to security events from:
o 1-hour notifications and 24-hour recording of security events, to 1-hour, 4-hour, 8-hour notifications and 24-hour recording of security events.
o Codifies the accelerated call to the NRC from NRC Bulletin 2005-02 to a new 15-minute notification.
Concurrently with the publication of the final rule, the NRC issued the following Regulatory Guides to support the implementation requirements set forth in the final rule:
5.62, Physical Security Event Notifications, Reports, and Records, Revision 2 5.86, Enhanced Weapons Authority, Preemption Authority, and Firearms Background Checks, Revision 0 5.87, Suspicious Activity Reports, Revision 0 During the August 23, 2023, public meeting, the NRC recognized there are ambiguities and inconsistencies contained by the final rule language and associated guidance. The discussed revision date for clarifying guidance publication was April 2024, which is 3 months after the compliance date of January 8, 2024. Additionally, the NRC recognized the need for rulemaking to address the issues with the final rule language.
Accordingly, PSEG Nuclear LLC is requesting an exemption from the specific requirements in 10 CFR Part 73, Subpart T, "Security Notifications, Reports, and Recordkeeping," 10 CFR 73.1200(a) through 10 CFR 73.1200(t), "Notification of Physical Security Events," 10 CFR 73.1205(a)(1) through 10 CFR 73.1205(e), "Written Follow-up Reports of Physical Security Events," 10 CFR 73.1210(a)(1) through10 CFR 73.1210(h), "Recordkeeping of Physical Security Events," and 10 CFR 73.1215(a) through 10 CFR 73.1215(f), "Suspicious Activity Reports," until the later of December 31, 2024, or 180 days after publication of the final Regulatory Guides.
PSEG Nuclear LLC is requesting an exemption from using the definitions for the terms "Contraband," and "Time of Discovery," as recently revised in 10 CFR 73.2, "Definitions,"
until the later of December 31, 2024, or 180 days after publication of the final Regulatory Guides. The exemption would not apply to the definitions of those terms that were in effect prior to the issuance of the 2023 revisions.
1 Enhanced Weapons, Firearms Background Checks, and Security Event Notifications; Final rule and guidance, 88 Fed. Reg. 15864 (March 14, 2023).
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November 20, 2023 LR-N23-0073 10 CFR 73.5 B. BASIS FOR EXEMPTION REQUEST 10 CFR 73.5 allows the Commission to grant exemptions from the requirements of Part 73 as it determines are authorized by law and will not endanger life or property or the common defense and security and are otherwise in the public interest. As explained below, this exemption request meets the criteria provided in section 73.5.
PSEG Nuclear LLC has identified several issues in the final rule and the supporting Regulatory Guides that require clarification from the NRC in order for PSEG Nuclear LLC to successfully implement the requirements. As mentioned above, the NRC is currently developing a resolution for code language issues and addressing guidance revisions. The NRC plans to issue additional guidance in April 2024, 3 months after the compliance date of January 8, 2024. Without additional guidance, enforcement relief, or the approval of this exemption, it is likely that PSEG Nuclear LLC will need to make changes to its physical security plans and processes twice - once to come into compliance with its own interpretation of the final rule (without the benefit of the additional guidance being developed by NRC), and again once the additional guidance is issued. The ambiguity and conflict created by the final rule language and existing guidance, which is described below, could result in unnecessary confusion and distraction that detract from the current high level of assurance provided by PSEG Nuclear LLCs existing physical security program. Thus, implementation of the final rule prior to issuance of additional clarifying guidance, at a minimum, is not in the best interest of the public. The following are several issues that have been identified as examples:
- 1. CONDITIONS ADVERSE TO SECURITY The introduction of the term conditions adverse to security within 10 CFR 73.1210 is undefined, and ambiguous. PSEG Nuclear LLC has established, as required, a formal Corrective Action Program IAW 10 CFR Part 50 Appendix B, Criterion XVI. NEI 16-07, Improving the Effectiveness of Issue Resolution to Enhance Safety and Efficiency, provided recommended approaches to the industry to enhance corrective actions, and facilitate a better organizational focus on conditions affecting safety and reliability. As a result, PSEG Nuclear LLC has developed procedures/processes to determine conditions adverse to quality as it relates to the security organization, (e.g., Condition Adverse to Regulatory Compliance.)
LS-AA-120 - ISSUE IDENTIFICATION AND SCREENING PROCESS defines specific events, situations or occurrences that result in a condition adverse to quality. Security-related items are included.
Given the robust nature of the Corrective Action Program, the additional duplication of procedures and/or revision of procedures to accommodate a new term is unnecessary, adds burden, and provides no increased value, safety margin or improvements to security programs or the Corrective Action Program.
- 2. DEFINITIONS IN 10 CFR 73.2 New definitions in § 73.2 expand existing definitions provided in NRC endorsed, NEI 03-12, Template for the Security Plan, Training and Qualification Plan, Safeguards Contingency Plan, Revision 7 and RG 5.76, Physical Protection Programs at Nuclear Page 2 of 9
November 20, 2023 LR-N23-0073 10 CFR 73.5 Power Reactors. PSEG Nuclear LLC has used the existing definitions to design its Security Plan and associated programs and procedures. Examples of the issues include:
Contraband: Specifically, the exempli gratia or e.g. parenthetical describing other dangerous materials as specifically including disease causing agents requires licensees to protect against circumstances beyond the current Design Basis Threat (DBT) as described in 10 CFR 73.1. Unless this exemption is issued, the application of this expanded definition will require changes to PSEG Nuclear LLCs methods of compliance with the requirements of 10 CFR 73.55(g)(1)(ii)(B). Paragraphs (g)(1)(ii)(B) requires (emphasis added):
§ 73.55(g) Access controls.
(1) Consistent with the function of each barrier or barrier system, the licensee shall control personnel, vehicle, and material access, as applicable, at each access control point in accordance with the physical protection program design requirements of § 73.55(b).
(ii) Where vehicle barriers are established, the licensee shall:
(B) Search vehicles and materials for contraband or other items which could be used to commit radiological sabotage in accordance with paragraph (h) of this section.
§ 73.55(h) Search programs.
(1) The objective of the search program is to detect, deter, and prevent the introduction of firearms, explosives, incendiary devices, or other items which could be used to commit radiological sabotage. To accomplish this the licensee shall search individuals, vehicles, and materials consistent with the physical protection program design requirements in paragraph (b) of this section, and the function to be performed at each access control point or portal before granting access.
(2) Owner controlled area searches.
(iv) Vehicle searches must be accomplished through the use of equipment capable of detecting firearms, explosives, incendiary devices, or other items which could be used to commit radiological sabotage, or through visual and physical searches, or both, to ensure that all items are identified before granting access.
(3) Protected area searches. Licensees shall search all personnel, vehicles and materials requesting access to protected areas.
(i) The search for firearms, explosives, incendiary devices, or other items which could be used to commit radiological sabotage shall be accomplished through the use of equipment capable of detecting these items, or through visual and physical searches, or both, to ensure that all items are clearly identified before granting access to protected areas. The licensee shall subject all persons except official Federal, state, and local law enforcement personnel on official duty to these searches upon entry to the protected area. Armed security officers who are on duty and have exited the protected area may re-enter the protected area without being searched for firearms.
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November 20, 2023 LR-N23-0073 10 CFR 73.5
§ 73.55(g) uses the term contraband, while § 73.55(h) uses terminology consistent with that found in the definition of contraband in NEI 03-12 (and RG 5.76). The specific inclusion of disease causing agents in the new regulatory definition of contraband will require PSEG Nuclear LLC to modify its programs and procedures describing the methods of compliance with paragraph § 73.55(g). PSEG Nuclear LLC understands that the NRC is looking at potential resolutions for this issue, but until further guidance is issued, or rulemaking occurs, PSEG Nuclear LLC is unable to come into compliance with this requirement as written without making significant changes to its physical security program.
Time of Discovery: Specifically, the term cognizant individual and is considered anyone who, by position, experience, and/or training, is expected to understand that a particular condition or event adversely impacts security. Currently, security plans incorporate the definition for Time of Discovery, that is found in NEI 03-12 and RG 5.76, being a supervisor or manager makes a determination that a verified degradation of a security safeguards measure or a contingency situation exists, to establish T=0 for a security related event.
The new definition expands the pool of personnel previously used by licensees to determine T=0 for an event, due to the undefined nature of position, experience, and/or training. Additionally, the broader nature and lower threshold for recognition of something that simply adversely impacts security, versus recognition of verified degradation of a security safeguards measure or a contingency situation contributes to the expansion of pool of personnel. PSEG Nuclear LLC is confident, the term in NEI 03-12 and RG 5.76, is the appropriate threshold for T=0 for security related events. The application of this expanded definition will require PSEG Nuclear LLC to expand current security programs to incorporate the expanded and revised training modules onsite for general plant employees, (potentially with INPO and the NANTeL course they facilitate), and the responsibility for implementation of the expanded training across a broad spectrum of personnel at the station.
- 3. FEDERAL AVIATION ADMINISTRATION (FAA) LOCAL CONTROL TOWER POINT OF CONTACT 10 CFR 73.1215 establishes reporting requirements for suspicious activities involving aircraft to a licensees FAA local control tower. Specifically, licensees are required to:
Establish a point of contact with their local FAA control tower, and Document the point of contact in written communication procedures.
The code language is very specific in regard to establishing a point of contact with the local control tower. Based on current experience, PSEG Nuclear LLC is not capable of obtaining a point of contact from a Federal Agency.
The requirement of establishing and documenting a FAA local control tower point of contact does not add additional safety margin to the protection or operation of PSEG Nuclear LLC and adds difficulty for compliance due to the lack of participation from our local control tower.
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November 20, 2023 LR-N23-0073 10 CFR 73.5
- 4. REGULATORY GUIDES Examples of clarification needed in the supporting Regulatory Guide 5.62, Revision 2, Physical Security Event Notifications, Reports, and Records include:
4-hour vs. 15-minute notification requirement:
§ 73.1200(e)(1)(iii) and (iv) requires a 4-hour notification for contraband attempted or actual introduction of contraband into a PA, VA, or MAA.
o The definition of contraband contains the term incendiaries.
§ 73.1200(a) required a 15-minute notification for hostile actions.
o RG 5.62, Rev 2, Section 7.1, page 24, provides examples of hostile actions:
(4) The discovery of unauthorized explosive materials, incendiary materials, or an improvised explosive device within the licensees site boundary.
The code language requires a 4-hour notification for an incendiary device at or inside the PA, VA, or MAA. The reg guide drives licensee to a 15-minute notification for an incendiary device at the site boundary, which is further away from safety related equipment.
The notification conflict the regulatory guide introduced between a 15- minute and 4-hour notification is burdensome, confusing, and makes the consistency and success for this notification unpredictable. Station personnel are trained in referencing published Regulatory Guides, station procedures and guidance, and other industry documents, as a best practice, to support the accuracy of determination of notification events.
The inconsistency created by RG 5.62 unnecessarily creates the potential for confusion and human performance error.
4-hour notification vs. 24-hour recording of lost or uncontrolled weapon:
§ 73.1200(e)(1)(v) requires a 4-hour notification for a lost or uncontrolled weapon.
§ 73.1210(f) requires recording within 24-hours physical security events or conditions that decreases the effectiveness of the physical security program.
o RG 5.62, Rev 2, Section 18.2, page 38, provides examples of the Recordable Events and Conditions Regarding Decreases in Effectiveness, that 73.1210(f) requires. The regulatory guide includes an event involving the loss of control of an authorized security weapon within a PA, VA, MAA, or CAA.
The conflict between the notification and recording of a lost or uncontrolled weapon only exists because of the regulatory guidance in RG 5.62. As a best practice, and to support accurate determination of notification events, station personnel are trained and fluent in referencing published Regulatory Guides, station procedures and guidance, and other industry documents. Additional clarity is needed in order to support the Page 5 of 9
November 20, 2023 LR-N23-0073 10 CFR 73.5 implementation of notifications and recordkeeping in a consistent and successful manner.
Malevolent intent discussion:
10 CFR 73.1200 only refers to the term malevolent intent in § 73.1200(q)(2) as exempli gratia or e.g. parenthetical describing a circumstance where a licensee may desire to detract a previous physical security event notification.
o RG 5.62, Rev 2, Section 2, page 21, titled, Malevolent Intent and Credible Bomb Threat Considerations, states the NRCs position that only government officials have the necessary resources and qualifications to determine whether malevolent intent was present in a security event.
o During the May 2023, and August 2023, public meetings, the NRC was unable to consistently describe when licensees were capable of this determination, and when licensees were required to have government officials make this determination.
o Within the NRC Response to Public Comments, ML16264A004,2 comment K-21 contains the discussion regarding credible, and puts into context, the circumstances of the NRCs position, as it relates to the determination of malevolent intent.
It is clear, that as of the publication date of March 2023, the discussion revolves around the 15-minute notification requirements, and not blanketly across all security related events.
PSEG Nuclear LLC is aligned that in certain circumstances, external government agencies would be the most appropriate to determine malevolent intent, (e.g., credible bomb threat, credible threat). However, PSEG Nuclear LLCs position on the capability to determine intent as it relates to identifying Human Performance errors, as well as determining Trustworthy and Reliability for Access purposes remains with PSEG Nuclear LLC.
The lack of clarity of the scope and/or intent of when it is appropriate for external government officials to determine malevolent intent creates ambiguity. Final clarity is needed to prevent PSEG Nuclear LLC having to unnecessarily change security programs and procedures, such as access authorization, to incorporate a process to await investigation results from NRCs Office of Investigations (OI), the intelligence community, or a federal, State, or local law enforcement agency.
C. CONSIDERATIONS FOR EXEMPTION As highlighted in the selected examples above, PSEG Nuclear LLC moving towards a compliance date of January 8, 2024, without full clarity on key parts of the final rule would result in an inadequate implementation. Unknown success path towards compliance of the final rule, as written, in current code language; along with the conflict and confusion the published, publicly available, stated positions of the NRC, are key elements for this request. PSEG Nuclear 2 NRC Response to Public Comments, Enhanced Weapons, Firearms Background Checks, and Security Event notifications Rule, NRC-2011-0018; RIN 3150-AI49 Page 6 of 9
November 20, 2023 LR-N23-0073 10 CFR 73.5 LLC would find themselves in a situation where the modification to security plans and procedures would be required at least twice, based on interpretation of this new rule. PSEG Nuclear LLC is requesting the following considerations be taken into account during review of this request:
PSEG Nuclear LLCs current site security plan implements the requirements of 10 CFR 73.71, Reporting of Safeguards Events for reporting the suspension of security measures.
PSEG Nuclear LLC will continue to comply with security event reporting, as previously required in 10 CFR 73.71, Reporting of Safeguards Events and Appendix G to Part 73, Reportable Safeguards Events.
PSEG Nuclear LLC will use the definitions for the terms "Contraband" and "Discovery (time of)," in its current site Security Plan consistent with how these terms are currently defined in Regulatory Guide 5.76, Revision 1, "Physical Protection Programs at Nuclear Power Reactors."
PSEG Nuclear LLC is currently implementing a formal Corrective Action Program and has identified Conditions Adverse to Quality as they relate to Security Programs and items that are Conditions Adverse to Regulatory Compliance.
PSEG Nuclear LLC is currently capable of making voluntary reports of suspicious activities, and this will not change in the interim until the new compliance date and allow for final revised regulatory guidance issuance.
o SY-AA-101-108 , RESPONSE TO SUSPICIOUS ACTIVITY AND EVENTS MALICIOUSLY DIRECTED AT PLANT SAFETY OR SECURITY The burden associated with rework for PSEG Nuclear is unnecessary while awaiting final clarity with publication of associated Regulatory Guides. Several examples of where rework will be required are:
o Revisions of associated procedures/processes, job aids, training materials and lesson plans that are used to describe and elaborate on reporting requirements.
o Coordination of work management and resources to align with station outage schedule(s).
S1R29 Salem Generating Station outage 10/6/2023 - 11/13/2023 H1R25 Hope Creek Generating Station outage 4/3/2024 - 5/16/2024 S2R27 Salem Generating Station outage 10/5/2024 - 11/9/2024.
o The re-training of impacted station personnel with updated information contained within the revised guidance documents:
Security Regulatory/Compliance Emergency Response Radiation Protection Operations - Accredited Training Program, requiring the use of the Systematic Approach to Training process. Examples of elements that drive the number of available weeks to train operators within a year are:
Salem Station executes three and a half number of cycles per year.
Salem Station requires two weeks for the number of weeks for each cycle of training, based on the number of operating crews, and licensed operators we have.
Salem Station is required to administer an exam cycle for our licensed operators each year.
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November 20, 2023 LR-N23-0073 10 CFR 73.5 Salem Station is required to incorporate certain elements within our 2-year training cycle, that include outage applicable objectives, (including, but not limited to: core changes, plant modifications, Lower Mode operations).
Hope Creek executes between six and seven number of cycles per year.
Hope Creek requires one week for each cycle of training, based on the number of operating crews, and licensed operators we have.
Hope Creek is required to administer an exam cycle for our licensed operators each year.
Hope Creek is required to incorporate certain elements within our 2-year training cycle, that include outage applicable objectives, (including, but not limited to: core changes, plant modifications, Lower Mode operations).
D. JUSTIFICATION FOR EXEMPTION Based on NRCs projected timeline for completion of revision to the applicable Regulatory Guides associated with this final rule, and the time necessary for PSEG Nuclear LLC to go through the change management processes adequately to include the number of training weeks that will be required, PSEG Nuclear LLC is requesting a new compliance date of December 31, 2024, or 180 days after publication of final Regulatory Guides, whichever is later.
As stated above, PSEG Nuclear LLC will continue to implement the Security Plan as documented. Since it has been reviewed and approved by the NRC, the PSEG Nuclear LLCs Security Plan provides reasonable assurance of safety and security. The delay in implementation of the final rule will not impact proper implementation of the current Security Plan and will ensure that the final rule is effectively implemented. Thus, granting of this exemption will not endanger the life or property or common defense and security.
Implementation of the final rule without further interface, clarity, and refined guidance may result in unintended consequences which could reduce the effectiveness of the current Security Plan. Therefore, it is in the publics interest that PSEG Nuclear LLCs Security Plan and associated procedures/processes comprehensively and accurately implement the regulation and guidance documents once resolution is obtained of identified issues.
The granting of this exemption would not violate the Atomic Energy Act, as the compliance date for the final rule is not required nor specified in the AEA as amended, any provisions of the Commissions regulations, or any other legally binding requirements imposed by the Commission.
Thus, issuance of this exemption request would be consistent with 10 CFR 73.5 because it is authorized by law and will not endanger life or property or the common defense and security and [is] otherwise in the public interest.
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November 20, 2023 LR-N23-0073 10 CFR 73.5 E. ENVIRONMENTAL ASSESSMENT PSEG Nuclear LLC is requesting an exemption from the specific requirements for the 2023 Security Rule, "Enhanced Weapons, Firearms Background Checks, and Security Event Notifications," effective as of April 13, 2023. The following information is provided in support of an environmental assessment and finding of no significant impact for the proposed exemption. PSEG Nuclear LLC has determined that the exemption involves no significant increase in the amounts, and no significant change in the types, of any effluents that may be released offsite; that there is no significant increase in individual or cumulative public or occupational radiation exposure; that there is no construction impact; and there is no significant increase in the potential for or consequences from a radiological accident. Accordingly, the proposed one-time exemption meets the eligibility criteria for categorical exclusion set forth in 10 CFR 51.22(c)(25). Pursuant to 10 CFR 51.22(b), no environmental impact statement or environmental assessment need be prepared in connection with the issuance of this proposed exemption request.
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