ML22182A453
| ML22182A453 | |
| Person / Time | |
|---|---|
| Site: | Nuclear Energy Institute, 99902028 |
| Issue date: | 07/01/2022 |
| From: | Uhle J Nuclear Energy Institute |
| To: | Mirela Gavrilas Document Control Desk, Office of Nuclear Reactor Regulation, Office of Nuclear Security and Incident Response |
| References | |
| Download: ML22182A453 (6) | |
Text
DR. JENNIFER UHLE Vice President, Generation and Suppliers 1201 F Street, NW, Suite 1100 Washington, DC 20004 P: 202.739.8164 jlu@nei.org nei.org July 1, 2022 Dr. Mirela Gavrilas Director, Office of Nuclear Security and Incident Response U.S. Nuclear Regulatory Commission Washington, DC 20555-0001
Subject:
Feedback on April 19, May 24, and June 1, 2022, Public Meetings on Options for Potential Codification of Post-September 11, 2001, Security Requirements Issued to NRC Licensees; [SECY-19-0095 and SECY-19-100; SRMs dated August 4, 2021]
Project Number: 689
Dear Dr. Gavrilas:
On behalf of its members, the Nuclear Energy Institute (NEI)1 is writing to provide input to the above-referenced potential rulemaking that would codify security requirements issued after the domestic terrorist attack of September 11, 2001. We trust that the NRC staff will consider this input, which is based on our understanding of the options under staff consideration as discussed during the April 19 and June 1, 2022, NRC public meetings on this topic (relevant SECY-19-0095) and a related public meeting on May 24, 2022, where the NRC staff discussed its current set of options for potentially codifying ISFSI-specific security requirements and other matters (relevant SECY-19-100).
First and foremost, continued safe and secure operations and regulatory compliance are of the utmost importance to NRC licensees and we take our responsibility seriously.
Secondly, The NRCs current regulatory framework (licensing, inspection, and oversight) and licensee-specific programs in place today adequately ensure public health and safety and common defense and security. The NRC staff reiterated this fact during both the public meetings. More specifically, security requirements vary by licensee and are based on site operations and authorized activities, e.g., uranium 1 The Nuclear Energy Institute (NEI) is responsible for establishing unified policy on behalf of its members relating to matters affecting the nuclear energy industry, including the regulatory aspects of generic operational and technical issues. NEIs members include entities licensed to operate commercial nuclear power plants in the United States, nuclear plant designers, major architect and engineering firms, fuel cycle facilities, nuclear materials licensees, and other organizations involved in the nuclear energy industry.
Dr. Mirela Gavrilas July 1, 2022 Page 2 enrichment versus a molybdenum-99 production facility. This approach is and can remain effective; thus, the NRC should remain confident in maintaining the very comprehensive security programs in place today.
Third, while we recognize the Commission directed the NRC staff in August 2021 to present several options with pros and cons on whether and how to proceed, a clear regulatory problem statement should be developed that would properly guide the NRCs consideration of rulemaking and non-rulemaking options.
During each of the three recent public meetings, the NRC staff was asked to explain what current information it was relying on to support the seven rulemaking-related options. To date, no such information has been shared. Yet, the NRC staff has proposed one non-rulemaking option (#1-status quo) and seven rulemaking options. The basis for any rulemaking is not self-evident, data-driven, risk-informed, or transparent to the industry. The fact that the NRC staff has only identified one non-rulemaking option seems to indicate a preference for rulemaking that has not yet been justified. Potentially subjecting one or more categories of licensees to rulemaking for reasons that remain unexplained creates significant regulatory and business uncertainty for these licensees.
Fourth, the current Options are not well-defined or described. During the public meetings, the NRC staff provided minimal context and specific information regarding the scope of and basis for each option currently under consideration. For example, the NRC staff acknowledged that they have not identified which categories of licensees would be either directly or indirectly potentially impacted by each proposed option.
Hence, it is difficult if not impossible for stakeholders to, at this time, provide meaningful input to the NRC that would assist in further evaluation or development of options. Perhaps if more specific information were available, we could provide industry insight that may assist the NRC staff in eliminating or revising some options or identifying new ones. Absent such basic information, the industry is unable to provide constructive feedback for the NRC staff to consider.
Finally, specific industry questions and comments relevant to fuel cycle facilities (FCFs), research and test reactors (RTRs) and Independent Spent Fuel and Storage Installations (ISFSIs) are described in the Enclosure. Specific to fuel cycle facilities, currently operating FCFs licensed under 10 CFR Part 70 offer an administrative alternative to rulemaking which could be considered a new Option 1A. Regarding ISFSIs, we are particularly concerned about proposed rulemaking options that would increase the threshold for determining whether spent fuel is considered self-protecting. There is no public information to indicate that the NRC has given any prior consideration to increasing this regulatory threshold. If the NRC has documentation otherwise, it should be made available to the industry either in a public or non-public meeting based on the nature of the information. Regarding RTRs, we strongly encourage the NRC consider the expressed regulatory burden protections under the Atomic Energy Act afforded to this category of licensee.
In summary, NRCs existing regulatory framework for security is adequate, fully implemented and routinely inspected. Any revised or new requirements should be justified on a sound regulatory basis and cost-benefit analysis and reflect the unique characteristics of each licensee category.
Dr. Mirela Gavrilas July 1, 2022 Page 3 We appreciate the opportunity to present our views on this important matter. Please do not hesitate to contact me if you have any questions about our position, if we can provide any additional information or if the NRC decides to conduct another public meeting to further inform its proposed options. As stated in the Enclosure, the RTR and ISFSI communities, at minimum, would likely benefit from additional dialogue.
Sincerely, Jennifer Uhle cc:
Cathy Haney, DEDMRS John Lubinski, NMSS Andrea Veil, NRR Michele Sampson, NSIR/DSP Shana Helton, NMSS/DFM NRC Document Control Desk
Enclosure July 1, 2022 Page 1 General Comments
- 1. Not Clear Whether, When or How Existing Requirements Would be Rescinded: There has been a long history of this complex regulatory matter and after the two recent public meetings, it is not yet clear to licensees whether, when or how the NRC would rescind existing security orders, confirmatory action letters (CALs), additional security measures (ASMs) and interim compensatory measures (ICMs) if a rulemaking occurs. It is important to note that some, if not most, of the existing security requirement content cannot be codified in the rule due to its non-public nature.
Hence, if a portion of the requirements were codified and a portion were not, a mosaic of requirements would be created potentially causing confusion for both the NRC and its licensees.
Such an outcome is unnecessarily complicated and is one tenet on which the staff based its 2019 Commission recommendation not to pursue rulemaking at all. Regulatory clarity should be an important consideration in the development of the options.
- 2. Use of 2019 Regulatory Basis as an Option: The NRC staff, during the public meetings, did not refer to or rely on the 2019 draft Regulatory Basis. Rather, all rulemaking options presented are based on the broader-scoped 2015 Regulatory Basis which industry believed at the time and continues to believe is problematic. We believe the 2019 Regulatory Basis warrants continued consideration. The industry suggests that an additional option be included proposing the 2019 Draft Regulatory Basis be used as the foundation for any rulemaking, should one occur.
Comments Relevant to Part 70 Fuel Cycle Facilities:
As NEI stated in its October 2014 letter to the NRC1, there are alternatives to rulemaking that could be considered which would further ensure licensees commitment to complying with existing security requirements. Specifically, NEIs fuel cycle facility members offer a New Option 1A as follows:
10 CFR Part 70 Fuel Cycle Facilities Propose New Option 1A:
The regulatory requirements for currently operating fuel cycle facilities licensed under 10 CFR Part 70, could be augmented, if needed, through regulatory mechanisms2 other than rulemaking. For example, the licensees could potentially take voluntary action to augment their security plans to address the issue that the NRC raises, provided it is justified. Licensees could then append their NRC approved security plans, as needed, and potentially submit the augmented security plans to the NRC for information only. NRC approval would not be required as there is no reduction in the effectiveness of the previously NRC approved program.
Rather, this is simply a proposed administrative action by licensees to demonstrate their continued commitment to comply with all applicable security requirements. NRC would then have an opportunity to inspect and verify the security actions are adequately included and allow NRC to rescind existing post 9/11 1 J Schlueter letter to C Bladey, ADM re: Industry Comments on Draft Regulatory Basis for 10 CFR Part 26 and 73, Enhanced Security at Fuel Cycle Facilities; Special Nuclear Material Transportation; Docket ID NRC-2014-0118; (79FR34641) 2 Regulatory mechanism such as Orders, Confirmatory Action Letters, Additional Security Measures, Interim Compensatory Measures issued post 9/11/01
Enclosure July 1, 2022 Page 2 security requirements. This approach would not be utilized by the uranium conversion facility currently licensed under 10 CFR Part 40 since the security requirement commitment is currently captured as a license condition.
It is important to recognize that the NRC implemented an analogous approach to that described above at Category I fuel fabrication facilities when it imposed a set of fitness-for-duty requirements in 2016; eliminating the need for a rulemaking process. Specifically, the Category I fuel fabrication facilities appended their security plans to incorporate newly imposed fitness-for-duty requirements and submitted the revised plans to NRC for approval.
Comments Relevant to Independent Spent Fuel Storage (ISFSIs):
ISFSIs have robust physical security plans, which have been approved by the NRC. As of December 31, 2021, there were 3,599 loaded dry cask storage systems at 74 NRC approved ISFSIs. This represents a highly extensive experience base. We are not aware of any issues that would warrant the imposition of new or revised security requirements. Notably, 56 of these ISFSIs initially went into operation after September 11, 2001 - meaning that security plans at roughly three quarters of the ISFSIs were created and approved by the NRC in the Post-9/11 threat environment. Further, in SECY-19-100, the NRC staff recommended discontinuing the ISFSI-specific rulemaking intended to codify the post-9/11 requirements.
In 2018, the NRC staff discontinued the work on the draft regulatory guide (85 Fed Reg 32,293) after the staff requirements memorandum on COMKLS-18-0003 reduced the scope of a rulemaking related to Part 72 licensees and codified only the requirements of the security orders issued by the NRC following the terrorist attacks of September 11, 2001. The NRC staffs analysis of such a rulemaking concluded it would not be cost-beneficial given the expense and complexity of the effort and the absence of any tangible increase in public safety and security. It is not clear to the industry what new information has been identified by the NRC that would warrant another rulemaking.
We are also concerned about the proposed rulemaking options that would increase the threshold for determining whether spent fuel is considered self-protecting. We are not aware of any past information or any recent studies that imply the regulatory threshold is too low. In addition, the NRC has not provided publicly any basis for the potential change in position. We request further public discussion on this issue.
Comments Relevant to Research and Test Reactors (RTRs):
RTRs have robust physical security plans, which have been approved by the NRC. RTRs adopted additional security enhancements, post 9/11, through incorporation of the NRCs use of Confirmatory Action Letters (CALs). Some RTR licensees even incorporated these additional security measures into their licensing basis during license renewal. In October 2014, eight letters were sent from members of the RTR fleet to the NRC, as pertaining to previous rulemaking efforts on this topic (Docket ID NRC-2014-0118). This included a universal letter from the National Organization of Test, Research, and Training Reactors (TRTR). While each
Enclosure July 1, 2022 Page 3 RTR is unique, and has a one-of-a-kind research and development mission, a shared concern was expressed in 2014, and again during the latest June 1 public meeting. Some of those concerns included a lack of regulatory basis for the effort, the potential for unintended consequences and the undue regulatory burden that would be imposed by some of the Options presented. It is not clear that the statutory protection afforded to RTRs under the Atomic Energy Act, Section 104 (c) (copied below, emphasis added) has been fully considered:
The Commission is authorized to issue licenses to persons applying therefor for utilization and production facilities useful in the conduct of research and development activities of the types specified in section 31 and which are not facilities of the type specified in subsection 104b. The Commission is directed to impose only such minimum amount of regulation of the licensee as the Commission finds will permit the Commission to fulfill its obligations under this Act to promote the common defense and security and to protect the health and safety of the public and will permit the conduct of widespread and diverse research and development.
Additional clarity and engagement are requested for this class of licensees, given their express protections under the AEA, as amended, and the proven adequacy of their current physical security posture.