ML23341A190

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Enclosujustification for Exemption Request from Specific Requirements in 2023 Security Rule
ML23341A190
Person / Time
Site: Callaway  Ameren icon.png
Issue date: 12/07/2023
From:
Ameren Missouri, Union Electric Co
To:
Office of Nuclear Material Safety and Safeguards, Office of Nuclear Reactor Regulation
Shared Package
ML23342A158 List:
References
ULNRC-06844
Download: ML23341A190 (1)
v • d • e


Text

Enclosure to ULNRC-06844 Page 1 of 8

Justification for Exemption Request from Specific Requirements in the 2023 Security Rule "Enhanced Weapons, Firearms Background Checks, and Security Event Notifications"

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 such as:

  • New terminology and associated requirements covering conditions adverse to security
  • Changes in reporting requirements applicable to security events from:

o 1-hour notifications and 24-hour recording of security events, to 1-hour, 4-hour, 8-hour notifications and 24-hour recording of security events.

o Codifies the accelerated call to the NRC from NRC Bulletin 2005 -02 to a new 15-minute notification.

Concurrently 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
  • 5.87, Suspicious Activity Reports, Revision 0

During the August 23, 2023, public meeting, the NRC recognized there are ambiguities and inconsistencies contained in the final rule language and associated guidance. The discussed revision date for clarifying guidance publication was April 2024, which is 3 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, Ameren Missouri is requesting an exemption for Callaway Plant (as well as the Independent Spent Fuel Storage Installation (ISFSI) located at the Callaway Plant site) 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)(1) through 10 CFR 73.1205(e), "Written Follow-up Reports of Physical Security Events," 10 CFR 73.1210(a)(1) through10 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 Guide s.

1 Enhanced Weapons, Firearms Background Checks, and Security Event Notifications; Final rule and guidance, 88 Fed. Reg. 15864 (March 14, 2023).

Enclosure to ULNRC-06844 Page 2 of 8

Ameren Missouri is also 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 Guide s. The exemption would not apply to the definitions of those terms that were in effect prior to the issuance of the 2023 revisions.

Ameren Missouri is not requesting an extension to the compliance date 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.

Ameren Missouri has identified several issues in the final rule and the supporting Regulatory Guides that require clarification from the NRC in order for Ameren Missouri 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 in 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 Ameren Missouri will need to make changes to the Callaway Plant Security Plan twice -once to come into compliance with its own interpretation of the final rule (without the benefit of the additional guidance being developed by NRC), and again once when the 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 distractionthat detract from the current high level of assurance provided by Callaway Plant 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:

1.CONDITIONS ADVERSE TO SECURITY

The introduction of the term conditions adverse to security within 10 CFR 73.1210 is undefined and ambiguous. Ameren Missouri has a formal Corrective Action Program established 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, Ameren Missouri has a procedure/process to determine conditions adverse to quality as it relates to the Callaway Plant security organization, (e.g., Condition Adverse to Regulatory Compliance.) P rocedure APA-ZZ-Enclosure to ULNRC-06844 Page 3 of 8

00500, " Corrective Action Program," defines specific events, situations or occurrences that result in a condition adverse to quality. Security-related items are included. Given the robust nature of the Callaway Plant 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 Callaway Plant s ecurity programs or the Corrective Action Program.

2.DEFINITIONS IN 10 CFR 73.2

New definitions in § 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 (RG)5.76, Physical Protection Programs at Nuclear Power Reactors. Ameren Missouri has used the existing definitions to design Callaway Plant's Security Plan and associated programs and procedures. Examples of the issues include:

  • Contraband: Specifically, the exempli gratia or e.g. parenthetical describ es other dangerous materials as specifically including disease causing agents requires licensees to protect against circumstances beyond the current Design Basis Threat (DBT) as described in 10 CFR 73.1. The application of this expanded definition will require changes to Ameren Missouri 's methods of compliance with the requirements of 10 CFR 73.55(g)(1)(ii)(B). Paragraphs (g)(1)(ii)(B) requires (emphasis added):

§ 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 § 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.

§ 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.

Enclosure to ULNRC-06844 Page 4 of 8

(2)Owner controlled area searches.

(iv) Vehicle searches must be accomplished through the use of equipment capable of detecting firearms, explosives, incendiary 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.

§ 73.55(g) uses the term contraband, while § 73.55(h) uses terminology consistent with that found in the definition of contraband in NEI 03-12 (and RG 5.76). The specific inclusion of disease causing agents in the new regulatory definition of contraband will require Ameren Missouri to modify Callaway Plant's programs and procedures describing the methods of compliance with paragraph § 73.55(g). Ameren Missouri understands that the NRC is looking at potential resolutions for this issue, but until further guidance is issued or rulemaking occurs, Ameren Missouri is unable to come into compliance with this requirement as written without making significant changes to the Callaway Plant physical s ecurity program.

  • Time of Discovery: Specifically, the term cognizant individual and the phrase is considered anyone who, by position, experience, and/or training, is expected to understand that a particular condition or event adversely impacts security expand the pool of personnel previously used by licensees 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 simply 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.

Currently, the Callaway Plant Security Plan incorporate s the definition for Time of Discovery, that is found in NEI 03-12 and RG 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. Ameren Missouri is confident, the term in NEI 03-12 and RG 5.76, is the appropriate threshold for T=0 for security related events. The application of this expanded definition will require Ameren Missouri to expand current Callaway Plant security programs t o incorporate the expanded and revised training modules onsite for Callaway Plant general plant employees (potentially with INPO and the NANTeL course they facilitate), as well as the responsibility for implementation of the expanded training across a broad spectrum of personnel at Callaway Plant.

Enclosure to ULNRC-06844 Page 5 of 8

3.REGULATORY GUIDES

Examples of clarification needed to support Regulatory Guide 5.62, Revision 2, Physical Security Event Notifications, Reports, and Records, include:

4-hour vs. 15-minute notification requirement:

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

o The definition of contraband contains the term incendiaries.

  • § 73.1200(a) required a 15-minute notification for hostile actions.

o RG 5.62, Rev 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.

  • The code language requires a 4-hour notification for an incendiary device at or inside the PA, VA, or MAA. The R egulatoryG uide drives licensee 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. Callaway Plant 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 RG 5.62 unnecessarily creates the potential for confusion and human performance error.

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

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

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

o RG 5.62, Rev 2, Section 18.2, page 38, provides examples of the Recordable Events and Conditions Regarding Decreases in Effectiveness, that 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 CAA.

The conflict between the notification and recording of a lost or uncontrolled weapon only exists because of the regulatory guidance in RG 5.62. As a best practice, and to support accurate determination of notification events, Callaway Plant personnel are trained in referencing published Regulatory Guides, station procedures and guidance, and other industry documents. Additional clarity is needed in order to support the implementation of notifications and recordkeeping in a consistent and successful manner.

Enclosure to ULNRC-06844 Page 6 of 8

Malevolent intent discussion:

10 CFR 73.1200 only refers to the term malevolent intent in § 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 RG 5.62, Rev 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.

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

Ameren Missouri is aligned that in certain circumstances, external government agencies would be the most appropriate to determine malevolent intent, (e.g., credible bomb threat, credible threat). However, Ameren Missouris 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 Ameren Missouri.

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 Ameren Missouri 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 (OI), the intelligence community, or a federal, State, or local law enforcement agency.

C. CONSIDERATIONS FOR EXEMPTION

As highlighted in the selected examples above, Ameren Missouri 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. The u nknown success path towards compliance with the final rule as

2 NRC Response to Public Comments, Enhanced Weapons, Firearms Background Checks, and Security Event notifications Rule, NRC-2011- 0018; RIN 3150- AI49 written in its current code language, along with the conflict and confusion that appear s to exist in regard to the published, publicly available, stated positions of the NRC, are key elements for this Enclosure to ULNRC-06844 Page 7 of 8

request. Ameren Missouri would find its elf in a situation where the modification to the Callaway Plant Security Plan and procedures would be required at least twice, based on interpretation of this new rule. Ameren Missouri is requesting the following considerations be taken into account during review of this request:

Ameren Missouri's current Callaway Plant Security Plan implements the requirements of 10 CFR 73.71, Reporting of Safeguards Events, for reporting the suspension of security measures.

Ameren Missouri 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.

Ameren Missouri will use the definitions for the terms "Contraband" and "Discovery (time of)" in its current Callaway Plant Security Plan consistent with how these terms are currently defined in Regulatory Guide 5.76, Revision 1, "Physical Protection Programs at Nuclear Power Reactors."

Ameren Missouri is currently implementing a formal Corrective Action Program and has identified Conditions Adverse to Quality as they relate to s ecurity programs and items that are Conditions Adverse to Regulatory Compliance.

Based on Callaway P lant procedure SDP -PI-SUPVS, " Supervisor's Handbook," Ameren Missouri is currently capable of making voluntary reports of suspicious activities, and this will not change in the interim until the new compliance date and allow for final revised regulatory guidance issuance.

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

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

o The re-training of impacted Callaway Plant personnel with updated information contained within the revised guidance documents:

Security Regulatory/Compliance Emergency Response Radiation Protection Operations -Accredited Training Program, requiring the use of the Systematic Approach to Training process. Examples of elements that drive the number of available weeks to train operators within a year are:

  • Ameren Missouri executes 5-6number of cycles per year.
  • Ameren Missouri requires 7weeks for each cycle of training, based on the number of operating crews, and licensed operators we have.
  • Ameren Missouri is required to administer an exam cycle for licensed operators each year.
  • Ameren Missouri is required to incorporate certain elements within a 2-year training cycle, that include outage applicable objectives

Enclosure to ULNRC-06844 Page 8 of 8

D. JUSTIFICATION FOR EXEMPTION

Based on NRCs projected timeline for completion of revision to the applicable Regulatory Guides associated with this final rule, Ameren Missouri 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, Ameren Missouri will continue to implement the Callaway Plant Security Plan as documented. Since it has been reviewed and approved by the NRC, the Callaway Plant 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 that could reduce the effectiveness of the current Security Plan. Therefore, it is in the publics interest thatthe Callaway Plant Security Plan and associated procedures/processes comprehensively and accurately implement the regulation and guidance documents once resolution of identified issues is obtained.

The granting of this exemption would not violate the Atomic Energy Act (AEA), as the compliance date for the final rule is not required or specified in the AEA as amended, in any provisions of the Commissions regulations, or in 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.

D. ENVIRONMENTAL ASSESSMENT

Ameren Missouri 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. Ameren Missouri has determined that the exemption involves no 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; t hat 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.

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