PLA-8088, Request for Exemption from Enhanced Weapons, Firearms Background Checks and Security Event Notifications Implementation (PLA-8088)

Request for Exemption from Enhanced Weapons, Firearms Background Checks and Security Event Notifications Implementation (PLA-8088)

ML23339A170
Person / Time
Site:	Susquehanna
Issue date:	12/05/2023
From:	Casulli E Susquehanna, Talen Energy
To:	Office of Nuclear Material Safety and Safeguards, Office of Nuclear Reactor Regulation, Document Control Desk
References
PLA-8088
Download: ML23339A170 (1)

Text

Edward Casulli Site Vice President December 05, 2023 Attn: Document Control Desk U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Susquehanna Nuclear, LLC 769 Salem Boulevard Berwick, PA 18603 Tel. 570.542.3795 Fax 570.542.1504 Edward.Casu lli@Ta lenEnergy.com SUSQUEHANNA STEAM ELECTRIC STATION REQUEST FOR EXEMPTION FROM ENHANCED WEAPONS, FIREARMS BACKGROUND CHECKS, AND SECURITY EVENT NOTIFICATIONS IMPLEMENTATION PLA-8088 TALEN~

ENERGY 10 CFR 73.5 Docket No. 50-387 50-388 72-28 On March 14, 2023, the Nuclear Regulatory Commission (NRC) noticed in the Federal Register, Final Rule, Enhanced Weapons, Firearms Background Checks, and Security Event Notifications. This final rule became effective April 13, 2023, with a compliance date of January 8, 2024.

In response to the publication of the final rule, Susquehanna Nuclear, LLC (Susquehanna),

performed a gap analysis to compare the new rule against cmTent requirements, NRC endorsed documents, and other guidance documents published by the NRC. Susquehanna also evaluated the broad impact across multiple organizations and the change management scope.

In accordance with 10 CFR 73.5, Susquehanna 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)(l) through 10 CFR 73.1205(e), "Written Follow-up Reports of Physical Security Events," 10 CFR 73.1210(a)(l) through 10 CFR 73.1210(h),

"Recordkeeping of Physical Security Events," and 10 CFR 73.1215(a) through 10 CFR 73.1215(£), "Suspicious Activity Reports," until the later ofDecember 31, 2024, or 180 days after publication of the final Regulatory Guides.

Susquehanna is requesting an exemption from using the definitions for the te1ms "Contraband,"

and "Time of Discovery" as recently revised in 10 CPR 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.

Document Control Desk PLA-8088 Susquehanna is not requesting an extension to the compliance date for Susquehanna for specific requirements in Title 10 of the Code of Federal Regulations (10 CFR) Part 73, Subpart B, "Enhanced Weapons, Preemption, and Firea1ms Background Checks," described in 10 CFR 73.15, "Authorization for Use of Enhanced Weapons and Preemption of Firearms Laws," and 10 CFR 73.17, "Fireatm Background Checks for Armed Security Personnel."

Based on NRC' s projected time line for completion of revision to the applicable Regulatory Guides associated with this final rule, and the time necessary for Susquehanna to go through the change management processes adequately to include the number of training weeks that will be required, Susquehanna is requesting a new compliance date of December 31, 2024, or 180 days after publication of final Regulatory Guides, whichever is later.

The enclosure to this letter provides the justification and rationale for the exemption request.

The requested exemption from the specific requirements in 10 CFR Part 73, is permissible under 10 CFR 73.5 because it is authorized by law, will not present an undue risk to the public health and safety, and is consistent with the common defense and security.

Susquehanna requests approval of this exemption by December 15, 2023, so actions can be taken to ensure consistent and reliable reporting procedures.

There are no new or revised regulatory commitments contained in this submittal.

If you have any questions or require additional information, please contact Melisa Krick, Manager - Regulatory Affairs, at (570) 542-1818.

E. Casulli

Enclosure:

Request for Exemption from Specific Requirements in the New Security Rule Copy:

NRC Region I Mr. C. Highley, NRC Senior Resident Inspector Ms. A. Klett, NRC Project Manager Mr. M. Shields, PA DEP/BRP

Enclosure to PLA-8088 Request for Exemption from Specific Requirements in the New Security Rule

Enclosure to PLA-8088 Page 1 of 12 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 that affect Susquehanna, 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,

• Changes to specific reporting requirements applicable to security events where notification / recording times have been modified or new requirements have been added. These changes include revised or additional 1-hour, 4-hour and 8-hour notifications,24-hour recording of security events and the addition of 15-minute notifications for specific security events. The new rule also codifies the accelerated call to the NRC from NRC Bulletin 2005-02.

Concurrent 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 targeted revision date for clarifying guidance publication was by April 2024, which is three 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, Susquehanna is requesting an exemption from the specific requirements in 10 CFR Part 73, Subpart T, "Security Notifications, Reports, and Recordkeeping," 10 1 Enhanced Weapons, Firearms Background Checks, and Security Event Notifications; Final rule and guidance, 88 Fed. Reg. 15864 (March 14, 2023).

Enclosure to PLA-8088 Page 2 of 12 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) through 10 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.

Susquehanna 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.

Susquehanna is not requesting an extension to the compliance date for Susquehanna for specific requirements in Title 10 of the Code of Federal Regulations (10 CFR) Part 73, Subpart B, Enhanced Weapons, Preemption, and Firearms Background Checks, described in 10 CFR 73.15, Authorization for Use of Enhanced Weapons and Preemption of Firearms Laws, and 10 CFR 73.17, Firearm Background Checks for Armed Security Personnel.

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.

Susquehanna has identified several issues in the final rule and the supporting Regulatory Guides that require clarification from the NRC in order for Susquehanna 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 by April 2024, which is three months after the compliance date of January 8, 2024. Without additional guidance, enforcement relief, and/or the approval of this exemption, it is likely that Susquehanna will need to make multiple changes to its physical security plans, processes, procedures, and training material. First, to come into compliance with our interpretation of the final rule (without the benefit of the additional guidance currently being developed by the NRC), and potentially again after the

Enclosure to PLA-8088 Page 3 of 12 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 detracts from the current high level of assurance provided by Susquehannas 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 of ambiguity and conflict between the existing regulations and the new rule and associated Regulatory Guides:

1. CONDITIONS ADVERSE TO SECURITY The introduction of the term conditions adverse to security within 10 CFR 73.1210 is undefined, and ambiguous. Susquehanna has established, as required, a formal Corrective Action Program in accordance with 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, Susquehanna has developed procedures and processes to determine conditions adverse to quality as it relates to the security organization (e.g., Condition Adverse to Regulatory Compliance).

• Susquehannas Corrective Action Program procedures define specific events, situations or occurrences that result in a Condition Adverse to Regulatory Compliance. Security-related items are currently included.

Given the robust nature of the Susquehanna 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 the security programs nor the Corrective Action Program.

2. DEFINITIONS IN 10 CFR 73.2 New definitions in Section 73.2 expand existing definitions provided in NRC endorsed NEI 03-12, Template for the Security Plan, Training and Qualification Plan, Safeguards Contingency Plan, [and Independent Spent Fuel Storage Installation Security Program], Revision 7 and Regulatory Guide 5.76, Physical Protection Programs at Nuclear Power Reactors. Susquehanna has used the existing definitions

Enclosure to PLA-8088 Page 4 of 12 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 as described in 10 CFR 73.1. The application of this expanded definition will require changes to Susquehannas methods of compliance with the requirements of 10 CFR 73.55(g)(1)(ii)(B). Paragraph (g)(1)(ii)(B) requires:

Section 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 Section 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.

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

Enclosure to PLA-8088 Page 5 of 12 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.

Section 73.55(g) uses the term contraband, while Section 73.55(h) uses terminology consistent with that found in the definition of contraband in NEI 03-12 and Regulatory Guide 5.76. The specific inclusion of disease causing agents in the new regulatory definition of contraband will require Susquehanna to modify its programs and procedures describing the methods of compliance with Section 73.55(g). Susquehanna understands that the NRC is looking at potential resolutions for this issue, but until further guidance is issued, or rulemaking occurs, Susquehanna 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 terms 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, the Susquehanna Security Plan incorporates the definition for Time of Discovery that is found in NEI 03-12 and Regulatory Guide 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 rule incorporates the term cognizant individual as the person that can make this determination.

Enclosure to PLA-8088 Page 6 of 12 The new definition expands the pool of personnel previously used by Susquehanna 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 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.

Susquehanna is confident the term in NEI 03-12, and Regulatory Guide 5.76 is the appropriate threshold for T=0 for security related events.

The application of this expanded definition will require Susquehanna 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. 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:

• Section 73.1200(e)(1)(iii) and (iv) requires a 4-hour notification for contraband attempted or actual introduction of contraband into a Protected Area (PA), Vital Area (VA), or Material Access Area (MAA).

o The definition of contraband contains the term incendiaries.

• Section 73.1200(a) requires a 15-minute notification for hostile actions.

o Regulatory Guide 5.62, Revision 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.

Enclosure to PLA-8088 Page 7 of 12

• The code language requires a 4-hour notification for an incendiary device at or inside the PA, VA, or MAA. The Regulatory Guide drives Susquehanna 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 Regulatory Guide 5.62 unnecessarily creates the potential for confusion and human performance error.

4-hour notification vs. 24-hour recording of a lost or uncontrolled weapon:

• Section 73.1200(e)(1)(v)(A) requires a 4-hour notification for a lost or uncontrolled weapon.

• Section 73.1210(f) requires recording within 24-hours physical security events or conditions that decreases the effectiveness of the physical security program.

o Regulatory Guide 5.62, Revision 2, Section 18.2, page 38, provides examples of the Recordable Events and Conditions Regarding Decreases in Effectiveness that Section 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 Controlled Access Area (CAA).

• The conflict between the notification and recording of a lost or uncontrolled weapon only exists because of the regulatory guidance in Regulatory Guide 5.62. As a best practice, and to support accurate determination of notification events, station personnel are trained in referencing published Regulatory Guides, station procedures and guidance, and other industry

Enclosure to PLA-8088 Page 8 of 12 documents. Additional clarity is needed in order to support the 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 Section 73.1200(q)(2) as exempli gratia or e.g. parenthetical describing a circumstance where a licensee may desire to retract a previous physical security event notification.

o Regulatory Guide 5.62, Revision 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. The term government officials includes but is not limited to, the NRCs Office of Investigations; the intelligence community; or a Federal, State, or local law enforcement agency.

o During the May 2023, and August 2023, public meetings, the NRC was unable to consistently describe when licensees would be capable of this determination, and when licensees would be 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.

• Susquehanna is aligned that in certain circumstances, external government agencies would be the most appropriate to determine malevolent intent 2 NRC Response to Public Comments, Enhanced Weapons, Firearms Background Checks, and Security Event notifications Rule, NRC-2011-0018; RIN 3150-AI49

Enclosure to PLA-8088 Page 9 of 12 (e.g., credible bomb threat, credible threat). However, Susquehannas 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 Susquehanna.

• 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 Susquehanna 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, the intelligence community, or a Federal, State, or local law enforcement agency.

C.

CONSIDERATIONS FOR EXEMPTION As highlighted in the selected examples above, Susquehanna 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. Susquehanna 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. Susquehanna is requesting the following considerations be taken into account during review of this request:

1. Susquehannas current site Security Plan implements the requirements of 10 CFR 73.71, Reporting of Safeguards Events for reporting the suspension of security measures.

2. Susquehanna 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.

3. Susquehanna 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."

Enclosure to PLA-8088 Page 10 of 12

4. Susquehanna has an established 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.

5. Susquehanna is currently capable of making voluntary reports of suspicious activities, and this will not change in the interim until the new compliance date and the final revised Regulatory Guidance issuance.

6. The burden associated with rework is unnecessary while awaiting final clarity with publication of associated Regulatory Guides. Several examples of where rework will be required are:

a) Revisions of associated procedures / processes, job aids, training materials and lesson plans that are used to describe and elaborate on reporting requirements.

b) Coordination of work management and resources to align with the station outage schedule. Susquehanna Steam Electric Station Unit 1 has a refueling and inspection outage scheduled in the Spring of 2024.

c) The re-training of impacted station personnel in the following groups with updated information contained within the revised guidance documents:

i) Nuclear Security ii) Nuclear Regulatory Affairs iii) Emergency Preparedness iv) Radiation Protection v) Operations - Being an Accredited Training Program, the use of the structured Systematic Approach to Training process is required. Examples of elements that drive the number of available weeks to train operators within a year are:

• The number of training cycles per year along with the number of weeks for each cycle of training, based on the number of operating crews, and licensed operators at the station.

• The requirement to administer an exam cycle for our licensed operators each year.

• The requirement to incorporate certain elements within our 2-year training cycle, that include outage applicable objectives (including, but not limited to core changes, plant modifications and lower mode operations).

Enclosure to PLA-8088 Page 11 of 12 D.

JUSTIFICATION FOR EXEMPTION Based on NRCs projected timeline for completion of revision to the applicable Regulatory Guides associated with this final rule, Susquehanna 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, Susquehanna will continue to implement the Security Plan as currently documented. Since it has been reviewed and approved by the NRC, the NRC has deemed Susquehannas 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 Susquehannas 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 Atomic Energy Act 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.

E.

ENVIRONMENTAL ASSESSMENT Susquehanna 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. Susquehanna has determined that the exemption involves no

Enclosure to PLA-8088 Page 12 of 12 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.