ML19224C842
| ML19224C842 | |
| Person / Time | |
|---|---|
| Issue date: | 12/27/1978 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | |
| Shared Package | |
| ML19224C839 | List: |
| References | |
| RULE-PRM-73 SECY-78-690, NUDOCS 7907090169 | |
| Download: ML19224C842 (8) | |
Text
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NUCLEAR REGULATORY COMMISSION KMC, Inc.
DENIAL OF PETITION FOR RULEMAKING Notice is hereby given that the Nuclear Regulatory Commission (NRC) has denied a petition for rulemaking submitted by letter dated October 23, 1978, by KMC, Inc., 1747 Pennsylvania Avenue, NW., Washington, D.C.
20006, on behalf of itself and eighteen electric utilities.
KMC petitioned the Commission to defer implementation of a rule in 10 CFR Part 73 entitled " Security Personnel Qualification Training and Equipment Requirements." This rule was published for ccmment in the FE3 2ft REGISTER on July 5,1977 (42 FR 34321), and was pt.blished in final form on August 23, 19/8 (43 FR 37421) with an effective date of October 23, 1978.
The petition requests deferral of this rule for nuclear power plants only.
The petitioner states four reasons for deferring implementatica of this reguletion.
The first is that a duplication of regalatory require-ments exists in the Nuclear Regulatory Comaission (NRC) because of the various offices " overlapping sphere of influence," and that ther a seems to be a "meximum effort" attitude, in that protection for nuclear power plants is equivalent to the protection of special r.uclear material.
Examples 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 1
Enclosure "C" 315 318 7 9 07 o g ni(M
procedures which, in essence, are contingency plans and the application of contingency plans to nuclear power plants was an extension of contingency plans for nuclaar fuel cycle facilities.
(2) The duplication of guidance to support the new Security Pe son-nel Qualification Training and Equipment Requirements in 10 CFR Part 73.
Reference is made to NUREG-0219 developed by the Office of Nuclear Reactor Reguiation and NUREG-0464 developed by the Office of Standards Development to show that an appar-ent overlap exists in this area.
(3)
The petition 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 justificaticn from any planned deviations."
The Commission believes that a more thorough analysis of response pro-cedures than is required by 10 CFR 73.55 is necessary and is attained by adherence to the requirements of the contingency plan ruir and the stan-dard format and content guide for this rule, Regulatory Guide 5.54.
How-ever, 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 addi-tion 1 information need be provided for contingency plans and duplication need not occur (see footnote (5) of 10 CFR 50.34(d) and footnote (1) of 10 CFR 73.40(b).
These notes were published March 3, 1978, effective 2
Enclosure "C" 315 37$3
9 June 6, 1978, as part of the contingency planning rule and are control-ling 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 descriptiens for cil 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 would be qualified for that particular task and no training would bc required.
On the other hand if personnel were deficient in certain tasks then either references in NUREG-0219, or NUREG-0464 could be used as the training vehicle to bring personnel up to the requireu 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 docurrents which can he used to ^. rain personnel to meet these performance objectives.
Neither of these documents have the force and effect of regulations and the regulatory staff is fully aware of tnis fact.
They are informa-tional documents meant to assist the licensee in responding to the regula-tory requirements.
This was made clear in meetings held witt 'icensees 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:
3 Enclosure "C" 315 320
(1) take precedence over; (2) serve as an adjunct to; or (3) serve as an extension of, Title 10 of the Code of Faderal 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 " extensive paramilitary training in tie use of deadly force when at the same time consistently avoiding the postare of condoning the use of such force." The petitioner interprets positions taken in a Commission paper (SEC'!-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 mate-rials, as a esture of not condoning the use of force.
4 'Qb In reply to this, the physical security rules applicable to power reactors and the fuel cycle in fact incorporate the requirement that licensees instruct guards to use deadly 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 recor.triendation not to seek legislation, adcpted by the Commis-sion, 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 force that may result in needless death or injury.
Paradoxically, weapons training can reduce the incidence of unnecessary or ca.aless use of weapons.
4 Enclosure "C" 5 321
In addition, the petitioner quotes certain parts of a Commission l
briefing held on September 6, 1978 (erroneously referred to in the peti-tion as occurring on May 17, 1978) to support the position that where state law imposes a duty to retreat before using deadly 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 s"e" employment."
There are at least cwo comments that should be rcode with respect to the petitioner's view.
First, nowhere in the guard training rule (partic-ularly Appendix B) is training in " offensive military tactics" called for.
Second, the petitioner misconstrues the applicaole rules.
As stated pre-viously, 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 Commission's view, however, that in most if not all realistic situations, excepcions 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 s caponry depending on the specific needs of 1Although the staff is respending to the merits of the allegation, the petitioner's use of briefing material in his petition'is contrary to 10 CFR 9.103.
5 Enclosure "C" 315 321
-, e
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 sabotage.
The petitioner cites 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 of Sabo-tage," SAND-7F-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 greater threat leval for such SSNM tha. 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 need 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 asserting t;.at it is an 6
Enclosure "C" 315 323
..s unjustifiable burden, and that the draining of resources for safeguards
" takes its toll in motivation and morale of those persons responsible to safely maintain and operate 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 costs are higher than those estimated in the VIA by about three to six times and his total annual costs are lower than those estimated in the VI', 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 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.
However, as in safety where training and procedu.as are used a assure that health and safety will be maintained, proper training and qualification 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 securi ty.
Also, it is expected that, af ter the initial development of the qualification and training plans, plant management can delegate the maintenance of these plans to the security organization.
In view of the foregoing, the Commission has denied the petition filed by KMC.
Cupies of tais petition and the Commission's letter of 7
Enclosure "C"
)) C) b
denial are available for public inspection in the Ccmmission's Public Document Room at 1717 H Street, NW., Washington, D.C.
Dated at Washington, D.C.,
this day of 1979.
For the Nuclear Regulatory Commission.
Samuel J. Chilk Secretary of the Ccomission 8
Enclosure "C" 315 325