ML19224C838
| ML19224C838 | |
| Person / Time | |
|---|---|
| Issue date: | 12/27/1978 |
| From: | Minogue R NRC OFFICE OF STANDARDS DEVELOPMENT |
| To: | |
| Shared Package | |
| ML19224C839 | List: |
| References | |
| RULE-PRM-73 SECY-78-690, NUDOCS 7907090138 | |
| Download: ML19224C838 (6) | |
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UNITED STATES December 27, 1978 NUCLEAR REGULATORY COMMISSION CONSENT cal.END AR ITEM F_o r:
Tne conm ssioners From:
Robert 8. Minogue, Director, Office of Standards Development Thru:
Executive Director for Operations
Subject:
PETITION FROM KMC, INC. FOR DEFERRING IMPLEMENTATION OF SECURITY PERSONNEL QUALIFICATION TRAINING AND EQUIPMENT REQUIREMENTS Purcose:
Approval of (1) a letter to KMC which denies a petition to reconsider the issuance of the Security Personnel Qualification Training and Equipment Requirements and (2) a proposed FEDERAL REGISTER Notice - Denial of Petition for Rule Making.
Catecory:
A matter requiring Commission consideration.
Discussion:
hMC, Inc., on behalf of itself and eighteen utilities listed in Attachment "A" of Enclosure "A", petitioned the Commission on October 23, 1978 (Enclosure "A") to defer implementation of a rule in 10 CFR Part 73 entitled " Security Personnel Qualifica-tion Training and Equipment Requirements." This rule was pub-lished for comment in the FEDERAL REGISTER on July 5, 1977 (42 FR 34321), and was published in final form on August 23, 1978 (43 FR 37421) with an effective -date of October 23, 1978.
The petition requests deferral of this rule for nuclear power plants only.
Basically the petitioner statas four reasons for deferring implementation of this regulation.
The first is that a dupli-cation of regulatory requirements exists in the Nuclear Regu-latory Commission (NRC) because of the various offices " overlap-ping sphere of influence," and that there seems to be a " maximum effort" attitude, in that protection for nuclear power plants is equivalent to the protection of special nuclear material.
Exam-ples given by petitioner to support these contentions are:
(1) The overlap of the contingency planning rule with 10 CFR 73.55.
That is, 10 CFR 73.55 had already required response procedures which, in essence, are continger.cy plans and the application of contingency plans to nuclear power plants was an extension of contingency plans for nuclear fuel cycle facilities.
(2) The duolicatio of guidance t'o support the new Security Per-sonnel Qualiff_ation Training and Equipment Recuirements in 10 CFR Part 73.
Reference is made to NUREG-0219 develoced
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by the Office of Nuclear Reactor Regulation and NUREG-0464 developed by the Office of Standards Development to show that an apparent overlap exists in this area.
(3) The petitioner also asserts that prior experience has shown that NUREG documents "have frequently been accorded the force and effect of regulations, with licensees expected to document any justification from any planned deviations."
The staff believes that a more thorough analysis of response procedures than is required by 10 CFR 73.55 is necessary and is attained by adherence to the requirements of the contingency plan rule and the standard format and content guide for this rule, Regulatory Guide 5.54.
However, if a licensee has ad-dres ed all the elements of the contingency plan rule in respon:e to the other requirements of 10 CFR '3.55 then no additional information need be providef for contingency plans and duplication need not occur (see fcc ote (5) of 10 CFR 50.34(d) and footnote (1) of 10 CFR 73.40(b).
These notes were published March 3, 1978, effective June 6, 1978, as part of the contingency planning rule and are controlling guidance for the staff).
With regard to NUREG 0219 and NUREG 0464, the scope and intent of these documents are considerably different.
NUREG 0219 developed a method for determining job descriptions for all security positions, the duties for eac job, the tasks associ-ated with each duty, and the performance objectives for all critical tasks.
Its emphasis is primarily to help the licensee to develop an assignment plan for security personnel coupled with the determination of the criteria under which each critical task will be evaluated.
If security personnel met the critical task criteria they would be qualified for that particular task and no training would be required.
On the other hand if person-nel were deficient in certain tasks then either
'arences in NUREG-0219, or NUREG-04G4 c.ould be used as the ng vehicle to bring personnel up to the required level of p
.ciency.
NUREG-0219 primarily presents a method for determining the jobs to be assigned to security personnel and the associated perfor-mance objectives, whereas NUREG-0464 is one of many documents which can be used to train personnel to meet these performance objectives.
Neither of these documents have the force and effect of regula-tions and the regulatory staff is fully aware of this fact.
They are informational documents meant to assist the licensee in responding to the regulatory requirements.
This was made clear in meetings held with licensees at the Regionai Of 1 es.
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NUREG-0464, in Vol. I, Section 1.1, third paragraph, states "Nothing contained in this manual shall be construed to either:
(1) take precedence over; (2) serve as an adjunct to; or (3) serve as an exten.cion of, Title 10 of the Code of Federal Regulation."
The second issue deals with the use of " offensive" weapons and use of deadly force in self defense and defense of others.
A question raised is why the Commission requires Nxtensive para-military training in the use of deadly force when at he same time consistently avoiding the posture of condoning the use of such force." The petitioner interprets positons taken in a Commission paper (SECY-78-350), wherein the Commission staff recommended against seeking Federal legislation which would clearly empower guard forces to use deadly force to protect special nuclear materials, as a posture of not condoning the use of force.
In reply to this issue, the physical security rules applicable to power reactors and the fuel cycle in fact incorporate the requirement that licensees instruct guards to use deaoly force when necessary in self defense and defense of others (see 10 CFR 73.55(h)(4)(v) and 73.50(g)(4)).
The staff recommendation not to seek legislation, adopted by the Commission, was based upon the opinion that current authority under state law for use of deadly force was adequate.
Training in weapons use is a rea-sonable requirement when the potential use of deadly force under certain circumstances may be needed and is recognized in the physical protection rules. What the Commission does not condone is unjustified use of deadly for.
that may result in needless death or injury.
Paradoxically, ws.apon training can reduce the incidence of unnecessary or careless use of weapons.
In addition, the~ petitioner quotes certain parts of a Commission briefing held on September 6, 1978 (erroneously referred to in 1
the petition as occurring on May 17, 1978) to support the posi-tion that where state law imposes a duty to retreat t'efore using deaaly force, the use of high powered semiautomatic weapons, or the use of any other sophisticated offensive weapons, or the use of offensive military tactics to attack potential saboteurs may be contrary to state and local laws, and thus guard training and qualification cannot be required without " clear Federal (NRC) direction enabling suct empl7yment."
blthoughthestaffisrespondingtothemeritsofthealleption,thepetitioners's use of briefing material in his petition is contrary to 10 CF? 9.103.
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There are at least two comments that should be made with respect to the petitioner's view.
First, nowhere in the guard training rule (particularly Appendix B) is training in " offensive military tactics" called for.
Second, the petitioner misconstrues the applicable rules.
As stated previously, the response rule requires the licensee to instruct guards to use deadly force when the guard has a reasonable belief it is necessary in self-defense or defense of others.
State law sets the context for the use of such force which may in a few states include restraints imposed by the duty to retreat concept (it is the staff's view, however, that in most if not all realistic situa-tions, exceptions to the duty to retreat rule would mitigate its application, i.e., the rule usually does not apply in a place of
" business," and retreat in perfect safety must be available).
To the extent a licensee's physical security plan incorporates the carrying or availability of specific weaponry depending on the specific needs of the site it is again reasonable to require training and qualification in the use of those weapons with the clear understanding that circumstances of justifiable use are set by state law.
The third issue deals with the perceived threat level of sabo-tage.
The petitioner cites a part of the statement of consider-ations for 10 CFR 73.55 (42 FR 10836) in addition to sections of a Sandia Laboratory report entitled " Safety and Security of Nuclear Power Reactors to Acts of Sabotage," SAND-75-0504, March 1976, to conclude that providing the same level of protection for significant amounts of special nuclear materials and nuclear power plants is " arbitrary and capricious."
The number of security personnel, the level of training, and the qualification of these personnel are not necessarily the same at nuclear power plants as they are for the protection of formula quantities of strategic special nuclear material (SSNM).
In fact, the Commission has proposed regulations which consider the protection against a greatar threat level for such SSNM than for nuclear power plants (43 FK 5327, August 9, 1978).
Apart from this, tae guard training rule specifies that security personnel should be qualified to their assigned duties, and their training should be equivalent if their duties are equivalent whether they are protecting SSNM or nuclear pcwer plants.
The new regulation, moreover, permits additional flexibility in that security per-sonnel reed only be qualified and trained in accordance with their duties specified in the physical security plan.
The fourth issue involves costs.
Although admitting that cost cannot be evaluated at this time, petitioner seems to be assert-ing that it is an unjustifiable burden, and that the drainira of resources for safeouards " takes its toll in motivation and 315 289
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morale of those persons responsiole to safely maintain and oper-ate the nuclear facilities."
The costs to implement the requirements have been developed in the value/ impact assessment (VIA) (in Public Document Room) that accompanied the rule.
The petitioner's estimate of initial total guard training.:osts are higher than those estimated in the VIA by about three tc six times and his total annual costs are lower than those estimated in the VIA by about one-third.
The VIA estimated that the total increase to the public costs per kwh for electricity for initial guard training as.043% and for annual guard training as.61%.
In the long term, then, the VIA actually estimates a higher cost than petitioner.
The staff does not consider these small incremental costs to be excessive.
As regards to the draining of resources, it s realized that safeguards does require additional resources.
However, as in safety where training and procedures are user to assure that health and safety will be maintained, proper training ano quali-ficaton procedures for security personnel are needed to assure that safeguards incidents do not lead to events which could affect health and safety or be inimical to the common defense and security.
Also, it is expected that, after the initial development of the qualification and~ training plans, plant management can delenate the maintenance of these plans to the security organization.
Recommended:
That the Commission:
1.
Aporove the proposed letter to KMC (Enciosure "B").
2.
Acorove the publication of the FEDERAL REGISTER notice (Enclosure "C"), Denial of Petition for Reconsideration Regarding the Issuance of the Security Personnel Qualifica-tion Training and Equipment Requirements.
3.
Note that appropriate Congressional Committees will be notified of this action.
4.
Note that a public announcement will not be issued.
Coordiration:
The Offices of Nuclear Reactor Regulation, Nuclear Material Safety and Safeguards, and Inspection and Enforcement concur in the recommendations of this paper.
The Office of the Executive Leg 1 Director has no legal objection to the recommendations of this paper.
The Office of Public Affairs indicates that a oublic announcement is not warranted.
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Scheduling:
See!5ETow.
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RobertB.Minogue,DireEkor Office of Standards Cevelopmert
Enclosures:
"A" - Petition from KMC "B" - Proposed response to KMC "C" - Proposed FEDERAL REGISTER Notice Commissioners' comments or consent should be provided directly to the Office of the Secretary by close of business Thursday, January 11, 1979.
Commission Staff Office comments, if any, should be submitted to the Commissioners NLT Janugry 5,1979, with an information copy to the Office of the Secretary.
If the paper is of such a nature that it requires additional time for analytical review and comment, the Commissioners and the Secretariat should be apprised of when comments may be expected.
This paper is tentatively scheduled for affirmation at an Open Meeting during the Week of January 15, 19;:.
Please refer to the appropriate Weekly Conmission Schedule, when published, for a specific data and time.
DISTRIBUTION Commissioners Commission Staff Offices Exec Dir for Operations ACRS Secretariat 315 c
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ENCLOSURE A
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ENCLOSURE "A" j
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October 23, 1978 y
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1k. Samuel J.
Chilk Secretary of the Commission U.S. Nuclear Regulatory Commission,
Washington, D.C.
20555
Dear Mr. Chilk:
-The attached Petition for Re
' sideration regarding the issuance of the Security Personnel Qualification Traii.'7g and Equipment Requirements-is hereby filed on behalf of KMC, Inc. and the util-ities listed in Attachment A.
Sincerely, O,L%axp[p es I D*"ald F. Knuth d
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OCT2 41978 >)
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UNITED STATES OF AMEhtICA NUCLEAR REGULATORY COMMISSION u
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MENTS --- 10 CFR Part 73
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- I e.a.i-PETITION FOR RECONSIOERATION 4
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OF ISSUANCE OF RULE g
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' A Sereinaf ter referred to. as " Petitioners") hereby
. peti.tlen.s the Nuclear Regulatory Commission to reconsider its decision to implement the " Security Personnel Qualification Train-ing and Equipment Requirements" rule which.is scheduled to become
'The Pe'titioners are interested effective on October 23, 1978.
persons in that the utilit.ies listed in Attachment A own nuclear power reactors which are either under etnstruction or in opera-tion (or both) and are subject to the requirements of 10 CFR
.Part 73.
The proposed rule change was published in the Federal On Aug st 23, Register on July 5,'1977, for public comment. _
1978, the rule was published in the Federal Register in final form with the effective date specified as October 23, 1978.
Concurrent with the issuance of tif' ~' ~ '
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Nuclear Reactor Regulation of thel DUPLICATE DOCUMENT ci p,
Entire document previously entered i
s 0219, " Nuclear Security Personnel into system under.
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