ML23354A206
| ML23354A206 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 12/20/2023 |
| From: | Jeffery Lynch TMI-2 Solutions |
| To: | Office of Nuclear Material Safety and Safeguards, Document Control Desk |
| References | |
| TMI2-RA-COR-2023-0030 | |
| Download: ML23354A206 (1) | |
Text
December 20, 2023 TMI2-RA-COR-2023-0030 10 CFR 73.5 U.S. Nuclear Regulatory Commission ATTN: Document Control Desk Washington, DC 20555-0001 Three Mile Island Nuclear Station, Unit 2 (TMI-2)
NRC Possession Only License No. DPR 73 NRC Docket No. 50-320
Subject:
Request for Exemption from Enhanced Weapons, Firearms Background Checks, and Security Event Notifications Implementation
References:
- 1. Letter TMI2-RA-COR-2022-0015 from M. Lackey (EnergySolutions) to Document Control Desk (USNRC) TMI-2 Materials Security Plan Scope of Activities, dated June 9, 2022 On March 14, 2023, the U.S. Nuclear Regulatory Commission (NRC) noticed Final Rule entitled, Enhanced Weapons, Firearms Background Checks, and Security Event Notifications, in the Federal Register (i.e., 88 FR 15864). This Final Rule became effective April 13, 2023, with a compliance date of January 8, 2024.
Security services at TMI-2Solutions (TMI-2S) are contracted per agreement with Constellation Energy Generations Three Mile Island Nuclear Station, Unit 1 (TMI-1). The TMI-2S Security Plan contains the scope of the contracted security services. Reference 1 provided the scope of these services to the NRC on June 9, 2022. In response to the publication of the final rule, TMI-2S reviewed the new rule as it pertains to the applicable requirements in 10 CFR 73.67, as described in the TMI-2S Security Plan. The site also evaluated the broad impact across multiple organizations and the change management scope for coordination with TMI-1.
TMI-1 submitted an exemption request to the Final Rule on November 22, 2023 (ML23326A010).
Accordingly, TMI-2S is submitting an exemption request in accordance with 10 CFR 73.5, to maintain security program alignment between the two sites. Therefore, TMI-2S is requesting an exemption from the specific requirements in 10 CFR Part 73, Subpart T, Security Notifications, Reports, and Recordkeeping, as follows:
10 CFR 73.1200(c)(1) 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 10 CFR 73.1215(a) through 10 CFR 73.1215(f), Suspicious Activity Reports The exemption is needed until the later of December 31, 2024, or 180 days after publication of the final Regulatory Guides.
TMI2-RA-COR-2023-0030 Page 2 of 2 TMI-2S is requesting an exemption from using the definitions for the term 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.
TMI-2S 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, Firearms Background Checks for Armed Security Personnel. In addition, the term contraband is not defined in the TMI-2 Security Plan and therefore, an exemption for the contraband definition is not required.
Based on NRCs projected timeline for completion of revision to the applicable Regulatory Guides associated with this Final Rule, and the time necessary for TMI-2S to coordinate with TMI-1 the change management processes adequately to include the number of training weeks that will be required, TMI-2S is requesting a new compliance date of December 31, 2024, or 180 days after publication of final Regulatory Guides, whichever is later.
The attachment 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.
TMI-2S requests approval of this exemption by January 8, 2024, so that actions can be taken to ensure consistent and reliable reporting procedures.
There are no regulatory commitments contained in this submittal. If you have any questions with respect to the contents of this letter, please contact Tim Devik, TMI-2 Licensing Manager, at (603) 384-0239 or trdevik@energysolutions.com.
Respectfully, Joseph R. Lynch Director, D&D Regulatory Affairs/Licensing EnergySolutions cc:
NRC Regional Administrator - Region I NRC Lead Inspector - Three Mile Island Nuclear Station - Unit 2 NRC Project Manager - Three Mile Island Nuclear Station - Unit 2 Director, Division of Nuclear Security, Office of Nuclear Security and Incident Response Director, Bureau of Radiation Protection - PA Dept of Environmental Protection Chief, Division of Nuclear Safety, Bureau of Radiation Protection - PA Dept of Environmental Protection Chairman, Board of County Commissioners - Dauphin County Manager - Londonderry Township
- Request for Exemption from Specific Requirements in 10 CFR 73 Joseph R. Lynch Digitally signed by Joseph R.
Lynch Date: 2023.12.20 09:23:36 -05'00'
6 Pages Follow Request for Exemption from Specific Requirements in 10 CFR 73 TMI2-RA-COR-2023-0030
Page 1 of 6 Request for Exemption from Specific Requirements in 10 CFR 73 A.
BACKGROUND On March 14, 2023, the U.S. 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 New definitions of the terms contraband and time of discovery in 10 CFR 73.2 New point of contact requirements with the Federal Aviation Administration (FAA)
Changes reporting requirements applicable to security events from:
o 1-hour notifications and 24-hour recording of security events To:
o 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 Concurrently with the publication of the Final Rule, the NRC issued the following Regulatory Guides (RGs) 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 revision date for clarifying guidance publication was 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, TMI-2Solutions (TMI-2S) is requesting an exemption from the specific requirements in 10 CFR Part 73, Subpart T, Security Notifications, Reports, and Recordkeeping, 10 CFR 73.1200(c)(1) 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 Guides.
TMI-2S is requesting an exemption from using the definitions for the terms Time of Discovery, as recently revised in 10 CFR 73.2, Definitions, until the later of December 31, 2024, or 180 1 "Enhanced Weapons, Firearms Background Checks, and Security Event Notifications" Final Rule and Guidance, 88 Fed. Reg. 15864 (March 14, 2023).
Page 2 of 6 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.
TMI-2S 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, Firearms Background Checks for Armed Security Personnel. In addition, the term contraband is not defined in the TMI-2S Security Plan and therefore, an exemption for the contraband definition is not required.
TMI-2S requests approval of this exemption by January 8, 2024, so actions can be taken to ensure consistent and reliable reporting procedures.
B.
BASIS FOR EXEMPTION REQUEST 10 CFR 73.5 allows the NRC 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.
TMI-2S has identified several issues in the Final Rule and the supporting Regulatory Guides that require clarification from the NRC for TMI-2S 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 revised guidance in April 2024, three months after the compliance date of January 8, 2024. Without additional guidance, enforcement relief, or the approval of this exemption, it is likely that TMI-2S will need to make changes to its Security Plan and processes 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 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 distraction that detract from the current high level of assurance provided by TMI-2Ss 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. ES has established, as required, a formal Corrective Action Program (CAP) in accordance with 10 CFR Part 50, Appendix B, Criterion XVI. TMI-2S has developed procedures/processes to determine conditions adverse to quality as it relates to the security organization, (e.g., Condition Adverse to Regulatory Compliance.)
TMI2-QA-PR-003, Corrective Action Process, 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 CAP, 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 or the CAP.
Page 3 of 6
- 2. DEFINITIONS IN 10 CFR 73.2 New definitions in Section 73.2 expand existing definitions that TMI-2S has used to design its Security Plan and associated programs and procedures. Examples of the issues specific to TMI-2S include:
Time of Discovery: Specifically, the term cognizant individual, is considered anyone who, by position, experience, and/or training, is expected to understand that a particular condition or event adversely impacts security. Currently, security plans incorporate the definition for Time of Discovery, that is found in 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.
The new definition expands 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. TMI-2S is confident, the term used in RG 5.76, is the appropriate threshold for T=0 for security related events. The application of this broader definition will require TMI-2S to expand current security programs to incorporate the revised training modules onsite for general plant employees, 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 RG 5.62, Revision 2, Physical Security Event Notifications, Reports, and Records, include:
4-hour notification vs. 24-hour recording of lost or uncontrolled weapon.
Section 73.1200(e)(1)(v) requires a 4-hour notification for a lost or uncontrolled weapon.
Section 73.1210(f) requires recording within 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> of physical security events or conditions that decrease the effectiveness of the physical security program.
o RG 5.62, Revision 2, Section 18.2, page 38, provides examples of the Recordable Events and Conditions Regarding Decreases in Effectiveness, that 73.1210(f) requires. The RG 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 guidance in RG 5.62. As a best practice, and to support accurate determination of notification events, station personnel are trained and fluent in referencing published RGs, station procedures and guidance, and other industry documents. Additional clarity is needed to support the implementation of notifications and recordkeeping in a consistent and successful manner.
Page 4 of 6 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 RG 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.
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.
Based on the current publication of Section 73.1200 on March 2023, the discussion focuses on the 15-minute notification requirements, and not across all security-related events.
TMI-2S 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, TMI-2Ss position on the capability to determine intent as it relates to identifying Human Performance errors, as well as determining whether individuals are trustworthy and reliable for access purposes, remains with TMI-2S.
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 TMI-2S having to unnecessarily change security programs and procedures 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, TMI-2S 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. TMI-2S 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. TMI-2S is requesting the following considerations be taken into account during review of this request:
TMI-2S is under an agreement with Constellations TMI-1 for a combined security program. This includes separate Security Plans and Implementing Procedures that will require coordination of the change management process made necessary by this rule change.
2 NRC Response to Public Comments, Enhanced Weapons, Firearms Background Checks, and Security Event notifications Rule, NRC-2011-0018; RIN 3150-AI49
Page 5 of 6 TMI-2S will use the definitions for the term Discovery (time of), in its current site Security Plan consistent with how these terms are currently defined.
TMI-2S is currently implementing a formal CAP process and has identified Conditions Adverse to Quality as they relate to Security Programs.
TMI-2S is currently capable of making voluntary reports of suspicious activities in conjunction with TMI-1 per the aforementioned agreement, and this will not change in the interim until the new compliance date and final RG issuance.
The burden associated with rework for TMI-2S is unnecessary while awaiting final clarity with publication of associated RGs. 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 Coordination of work management and resources to align with station schedule(s).
With TMI-2S decommissioning staffing numbers, unnecessary work could delay the decommissioning milestone.
o The re-training of impacted station personnel with updated information contained within the revised guidance documents:
Security Regulatory Assurance Emergency Response Radiation Protection D.
JUSTIFICATION FOR EXEMPTION Based on NRCs projected timeline for completion of revision to the applicable RGs associated with this Final Rule, TMI-2S is requesting a new compliance date of December 31, 2024, or 180 days after publication of final RGs, whichever is later.
As stated above, TMI-2S will continue to implement the Security Plan as currently reviewed and approved by the NRC. The TMI-2S 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 TMI-2Ss 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 (AEA) as amended, as the compliance date for the Final Rule is not required nor specified in the AEA, provisions of the NRC's regulations, or any other legally binding requirements imposed by the NRC.
Page 6 of 6 Thus, issuance of this exemption request is 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 TMI-2S is requesting an exemption from the specific requirements of 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.
TMI-2S 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; 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.