ML19224C841
| ML19224C841 | |
| Person / Time | |
|---|---|
| Issue date: | 12/27/1978 |
| From: | Chilk S, Chilks S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | Knuth D KMC, INC. |
| Shared Package | |
| ML19224C839 | List: |
| References | |
| RULE-PRM-73 SECY-78-690, NUDOCS 7907090164 | |
| Download: ML19224C841 (7) | |
Text
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9 ENCLOSURE "B" Proposed Letter to Petitioners Donald F. Knuth, President KMC, Inc.
1747 Pensylvania Ave,fM.
Washington, D.C.
20006 The Commission has considered your petition of October 23, 1978, to recon-sider issuance of the Security Personnel Qualification Training and Equip-ment Requirements.
Your request was based on a series of comments under the headings of (1) " Nuclear Power Plant Requirements to Protect Against Sabotzge," (2) "Use of Deadly Force," (3) "Perc..ived Threat Level of Sabotage," and (4) " Cost of Guard Training."
In reply to your comments under the first heading regarding the overlap of the contingency planning rule with 10 CFR 73.55, the Commission bel' aves that a more thorough analysis of response procedures than is required by 10 CFR 73.55 is necessary and is obtained by adherence to the requirements of the contingency plan rule and the standard forn.at and con-tent guide for this rule, Regulatory Guide 5.54.
However, if a licensee has addressed all the elements of the contingency plan rule in response to the other requirements of 10 CFR 73.55, then no additional information need be provided for contingency plans and duplication need not occur (see footnote (5) of Section 50.34(d) and footnote (1) of Section 73.40(b).
Enclosure "B" 1 91
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Donald F. Knuth 2
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).
Other comments made under the first heading refer to an apparent overlap of guidance provided by NRC (NUREG-0219 and 0464) to support this rule.
The scope and intent of these documents, however, are considerably differ-ent.
NUREG-0219 develops a method.for determining job descriptions for all security positions, the duties for each job, the tasks associated 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 woulo be qualified for that particular task and no training would be required.
On the other hand if personnel were deficient in certain tasks then either references in NUREG-0219, o.-
NUREG-0464 could be used as the training vehicle to bring personnel up to the required level of proficiency.
NUREG-0219 primarily presents a method for determining the jobs to be assigned to security personnel and the associated performance objectives, whereas NUREG-0464 is one of many documents which can be used to train personnel to meet these,erformance objectives.
Enclosure "B" 3\\S 5\\\\
Donald F. Knuth 3
.ieither of these documents have the force and effect of regulations 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 Regional Offices.
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 extension of, Title 10 of the Code of Federal Regulation."
Your comments under the second heading deal 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 " extensive paramilitary training in the use of deadly force when at the same time consistently avoiding the posture of condoning the use of such force."
Positions tahen in a Commission paper (SECY-78-350), wherein the Comm'ssion staff recom-mended against seeking Federal legislation which would clearly (mpower guard forces to use deadly force to protect special nuclear materials, have been interpreted as a posture of the NRC not condoning the use of force.
In reply to this, the p.
.ical security rules applicable to cower reactors and the fuel cycle in fact incorporate the requirement that licensees instruct guards to us. deadly forca when necessary in self defense and defense of others (see 10 CFR 73.55(h)(4)(v) and 73.50(g)(4)).
The staff Enclosure "C" 315 312
4F Donald F, Knuth 4
recommendation not
- .o 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 reasonable requirement when the potential use of deadly force under certain circum-stance may ~e needed and is recognized in the physical protection rules.
o What the Commission does not condone is unjustified use of deadly force that may result in needless death or injury.
Paradoxically, weapc1 train-ing can reduce the incidence of unnecessary or careless use of weapo..a.
In addition, you quote certain parts of a Commission briefing held on September 6, 1978 (erroneously referred to in the petition as occurring on May 17, 1978) to support the position that where state law imposes a duty to retreat before using deadly force, use of high powered semiautomatic weapond, 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 qualifica-tion cannot be required without " clear Federal (NRC) direction enabling such employment."
There are at least two comments that can be made with regard to this issue.
First, nowhere in the general training rul3 (particularly Appen-dix B) is training in " offensive milit.ry tactics" called for.
Second, you misconstrue the applicable rules.
As stated previously, the response rule requires the licensee to instruct guards to use deadly force when the Enclosure "B"
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Donald F. Knuth 5
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 Commission's view, however, that in most if not all realistic situations, exceptions to the duty to retreat rule would mitigate its applicaton, 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 d7pending 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 justifii'ble use are set by state law.
With regard to your use of briefing material under this heading we would like to bring to your attention that it is contrary to 10 CFR 9.103.
The third heading deals with the perceived threat level of sabotage.
You cite a part of the statement of considerations 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 or Sabotage," SAND-85-0504, 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 qualifi-cation of these personnel are not necessarily the same at nuclear pcwer Enclosure "B" 315 3
Donald F. Knuth 6
plants as they are for the protection of formula quac..ities of strategic special nuclear material (SSNM).
In fact, the Comissior has proposed regulations which consider the protection against a greater threat level for such SSNM than for nuclear power plants (43 FR 35327, August 9, 1978).
Apart from this, the 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 power plants.
The new regulation, moreover, permits additional flexibility in that security personnel r.eed 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, you seem to be asserting thet it is an unjusti' fiable burden, and that the draining of resources for safeguards " takes its toll in motivation ana morale of those persons responsible to safely maintain and operate the nuclear facilities."
The costs to implement the requiremente have been developed in the value/
impact assessment (VIA) (in Public Document Room) that accampanied the rule.
Your estimate of initial total guard training costs are higher than those estimated in the VIA by about three to six times and your 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 3nnual guard Enclosure "B" 315 315
Donald F. Knuth 7
tre.ining as. 61%.
In the long term, then, the VIA actually estimates a higher cost than yours.
The Commission does not consider these small incremental costs to be excessive.
As regards to the draining of resources, it is realized that safeguards does require additional resources.
tiowever, as in safety where training and procedures are used to assure that health and safety will be main-tained, proper training and qualificaton procedures for security personnel are needed to assure that safeguards incidents do not lead to evsnts which could af fect health and safety or be inimical to the commen defense and securi ty.
Also, it is expected that, af ter the initial development of the qualification and training plans, plant management can delegate the i
maintenance of these pians to the security organization.
For these reasons the Commission has denied your petition 2; reflected in the enclosed FEDERAL REGISTER l'otice.
Sincerely, Samuel J. Chilk, Secretary Office of the Secretary
Enclosure:
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