ML23355A061

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Portland General Electric Company - Request for Exemption from Enhanced Weapons, Firearms Background Checks, and Security Event Notifications Implementation
ML23355A061
Person / Time
Site: Trojan File:Portland General Electric icon.png
Issue date: 12/14/2023
From: Felton B
Portland General Electric Co
To:
Document Control Desk, Office of Nuclear Material Safety and Safeguards
References
VPN-010-2023L
Download: ML23355A061 (1)
v • d • e


Text

Portland General Electric Company Trojan ISFSI 71760 Columbia River Hwy Rainier, Oregon 97048 December 14, 2023 VPN-010-2023L Trojan ISFSI Docket 72-017 License SNM-2509 ATTN: Document Control Desk Director, Division of Spent Fuel Management Office of Nuclear Material Safety and Safeguards U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Request for Exemption from Enhanced Weapons, Firearms Background Checks, and Security Event Notifications Implementation

Dear Commissioners and Staff:

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. The Final Rule is required to be implemented by January 8, 2024.

In response to the publication of the Final Rule, Portland General Electric Company {PGE) Trojan performed a gap analysis to compare the new rule against current requirements, NRC-endorsed documents, and other guidance documents published by the NRC.

In accordance with 10 CFR 73.5, PGE Trojan is requesting an exemption from the specific requirements in 10 CFR Part 73, Subpart T, "Security Notifications, Reports, and Record keeping," 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) through 10 CFR 73.1210{h), "Record keeping 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 associated with the rule, whichever is later.

PGE Trojan is also requesting an exemption from using the 10 CFR 73.2 definitions for the terms "Contraband" and "Time of Discovery," as revised in the Final Rule, 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 Final Rule.

PGE Trojan has not applied for nor received preemption authority for the Trojan ISFSI. Therefore, 10 CFR 73.15, "Authorization for Use of Enhanced Weapons and Preemption of Firearms Laws;" and 10 CFR 73.17, "Firearms Back~round Checks for Armed Security Personnel" do not apply to the Trojan ISFSI and no exemption is requested.

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Document Control Desk December 14, 2023 VPN-010-2023L Page 2 Based on the NRC's projected timeline for completion of revisions to the applicable Regulatory Guides associated with the Final Rule, PGE Trojan is requesting a new compliance date of December 31, 2024, or 180 days after publication of final NRC Regulatory Guides, whichever is later.

The attachment to this letter provides the justification and rationale for the exemption request. The requested exemption from compliance date of January 8th, 2024, is permissible under 10 CFR 73.5 because it is authorized by law, will not endanger life or property or the common defense and security, and are otherwise in the public interest.

PGE Trojan requests approval of this exemption by December 31, 2023, so actions can be taken to ensure consistent and reliable reporting procedures.

PGE Trojan makes no new or revised regulatory commitments (as defined by NEI 99-04) in this letter.

If you have any questions or require additional information, please contact Mr. Tom Sanders, Trojan ISFSI Manager at {503) 556-7029.

Sincerely, Benjamin Felton (Dec 18, 2023 12:38 PST)

Benjamin F. Felton Executive Vice President and Chief Operating Officer Enclosure c: Regional Administrator, NRC Region IV, DNMS

VPN-010-2023L December 14, 2023 Page 1 of 7 REQUEST FOR EXEMPTION FROM JANUARY 8, 2024 COMPLIANCE DATE 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 to the reporting requirements applicable to security events are as follows:

o Changes 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 Notifica~ions, 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 revision date discussed 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.

In accordance with 10 CFR 73.5, "Specific Exemptions," Portland General Electric Company (PGE)

Trojan 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)(1) throughl0 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.

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

VPN-010-2023L December 14, 2023 Page 2 of7 PGE Trojan is also requesting an exemption from using the definitions for the terms "Contraband" and "Time of Discovery," as 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 Final Rule.

PGE Trojan has not applied for, nor received preemption authority for the Trojan ISFSI.

Therefore, 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" do not apply to the Trojan ISFSI, and no exemption is requested.

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 10 CFR 73.5.

In addition, NRC submitted a letter entitled "Enforcement Guidance Memorandum - Interim Guidance For Dispositioning Violations Associated With The Enhanced Weapons, Firearms Background Checks, And Security Event Notification Rule", dated December 5, 2023. This letter states the following:

"This enforcement guidance memorandum (EGM) provides guidance to U.S. Nuclear Regulatory Commission (NRC) inspection staff on the use of enforcement discretion for dispositioning violations related to a licensee's implementation of the "Enhanced Weapons, Firearms Background Checks, and Security Event Notifications," final rule (hereafter referred to as the Enhanced Weapons rule (EWR)). Specifically, this EGM provides guidance to the NRC staff to exercise enforcement discretion for certain violations associated with Title 10 of the Code of Federal Regulations (10 CFR) 73.1215, "Suspicious activity reports," and certain violati_ons associated with licensees identifying and reporting instances of contraband at their sites. This EGM also provides guidance associated with enforcement discretion in cases where a licensee has submitted a request for an exemption from portions of the EWR."

PGE Trojan has identified several issues in the Final Rule and the supporting Regulatory Guides that require clarification from the NRC for PGE Trojan 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, 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 PGE Trojan will need to make changes to its physical security plans 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

VPN-010-2023L December 14, 2023 Page 3 of 7 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 implementation of PGE Trojan's existing physical security program. Thus, implementation of the Final Rule prior to issuance of additional clarifying guidance, at a minimum, is 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. The Trojan ISFSI has established a Corrective Action Program in accordance with 10 CFR 72.172, "Corrective Action." The Trojan ISFSI has procedures/processes to determine conditions adverse to quality as it relates to the security organization.

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 Corrective Action Program.

2. DEFINITIONS IN 10 CFR 73.2 The new 10 CFR 73.2 definitions for Contraband includes unauthorized firearms, explosives, incendiaries, or other dangerous materials (e.g., disease causing agents), which are capable of causing acts of sabotage against a licensed facility.
  • Contraband: The contraband definition requires ISFSls licensed under 10 CFR 73.51 to protect against circumstances beyond the current Design Basis Threat as described in ISFSI Orders. Unless this exemption is issued, the application of this expanded definition will require changes to the Trojan ISFSl's methods of compliance with search requirements specified in ISFSI Security Orders and 10 CFR 73.51(d)(9), which requires:

§ 73.Sl(d) Physical protection systems, components, and procedures.

(9) All individuals, vehicles, and hand-carried packages entering the protected area must be checked for proper authorization and visually searched for explosives before entry.

  • Time of Discovery: The new 10 CFR 73.2 definition for Time of Discovery uses the term "cognizant individual," which "is considered anyone who, by position, experience, and/or training, is expected to understand that a particular condition or event adversely impacts security."

Currently, reportability of security events is determined by the Trojan Security Plan and implementing procedures. The threshold for reporting security events is consistent with the security posture described in the Security Plan. The new definition expands the pool of personnel previously used to determine reportable security events. The broader nature and lower threshold for recognition of something that simply "adversely impacts security,"

VPN-010-2023L December 14, 2023 Page 4 of 7 versus "a reportable security event," contributes to the expansion of the pool of personnel needed to respond to lower threshold events. Additionally, the expanded definition could result in unnecessary confusion and distraction that detract from the current high level of assurance provided by implementation of the existing physical security program.

The application of the expanded definition will require Trojan ISFSI to modify programs and procedures; and expand training across a broader spectrum of ISFSI personnel.

3. FEDERAL AVIATION ADMINISTRATION {FAA) LOCAL CONTROL TOWER POINT OF CONTACT 10 CFR 73.1215 establishes reporting requirements for suspicious activities involving aircraft to a licensee's FAA local control tower. Trojan ISFSI does not have an agency agreement with the FAA nor reporting requirements to the FAA.

There is no change in the Trojan ISFSI security threats that would warrant a change to the current Trojan ISFSI security posture. Therefore, the requirement to establish and document a FAA local control tower point of contact adds difficulty for compliance without adding additional safety margin to the protection or operation of the Trojan ISFSI.

4. REGULATORY GUIDES Examples where clarification is needed in Regulatory Guide 5.62, Revision 2, "Physical Security Event Notifications, Reports, and Records" include:

"Power reactor facilities and production facilities that are in a decommissioning status and have removed all spent nuclear fuel from the facility's spent fuel pool (e.g., to an ISFSI, MRS or GROA) need not report events under 10 CFR 73.1200{a). However, such licensees should instead consider whether the event should be reported under 10 CFR 73.1200{c), (e), or (g).

There is no change in the Trojan ISFSI security threats that would warrant a change to the current Trojan ISFSI security posture. Therefore, the requirement to establish a 15-minute notification for hostile action adds difficulty for compliance without adding additional safety margin to the protection or operation of the Trojan ISFSI.

The 15-minute notification for hostile action would require duplication of procedures and/or revision of procedures to accommodate a new reporting requirement, it adds regulatory burden, and provides no increased value, safety margin or improvements to the security programs.

  • 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.

VPN-010-2023L December 14, 2023 Page 5 of 7

§ 73.1210{f) requires recording within 24-hours any "threatened, attempted, or committed act not previously defined in this section that has resulted in or has the potential for decreasing the effectiveness of the licensee's physical security program below that committed to in a licensee's NRC-approved physical security plan."

RG 5.62, Rev. 2, Section 18.2, pp. 37-38, 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 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 RG 5.62. Additional clarity is needed to support the implementation of notifications and record keeping in a consistent and successful manner.

C. CONSIDERATIONS FOR EXEMPTION As highlighted in the selected examples above, Trojan ISFSI 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 unknown success path towards compliance of the Final Rule as written, in current code language, along with the conflict and confusion from the published, publicly available positions of the NRC, are key elements for this request. Trojan ISFSI would find itself in a situation where the modification to security plans and procedures would be required at least twice, based on interpretation of this new rule. Trojan ISFSI is requesting the following considerations be taken into account during review of this request:

  • The current site Security Plan implements the requirements previously contained in 10 CFR 73.71, "Reporting of Safeguards Events," for reporting the suspension of security measures.
  • Trojan ISFSI 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."
  • Trojan ISFSI 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."
  • Trojan ISFSI Corrective Action Program that identifies security-related conditions.
  • Voluntary reporting of suspicious activities will not change in the interim until the new compliance date and allow for final revised Regulatory Guide issuance.

VPN-010-2023L December 14, 2023 Page 6 of 7

  • The burden associated with rework for Trojan ISFSI is unnecessary while awaiting final clarity with publication of associated Regulatory Guides. 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 Trojan ISFSI personnel with updated information contained within the revised Regulatory Guidance documents for:

Security Regulatory/Compliance Emergency Response PGE Trojan has not applied for and received preemption authority via confirmatory orders for the Trojan ISFSI. Therefore, 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" do not apply to the Trojan ISFSI and no exemption is requested.

D. JUSTIFICATION FOR EXEMPTION Based on NRC's projected timeline for completion of revision to the applicable Regulatory Guides associated with this Final Rule, Trojan ISFSI 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, Trojan ISFSI will continue to implement its Security Program as previously approved by the NRC. The existing Security Program will continue to provide high assurance that ISFSI activities do not constitute an unreasonable risk to public health and safety. The delay in implementation of the Final Rule will not impact proper implementation of the current Trojan ISFSI Security Program 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 clarity and refined guidance may result in unintended consequences which could reduce the effectiveness of the current Security Program. Therefore, it is in the public's interest that the Security Program and associated procedures/processes comprehensively and accurately implement the regulation and guidance documents once resolution of identified issues has been obtained.

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 AEA as amended, any provisions of the NRC's regulations, or any other legally binding requirements imposed by the NRC.

Thus, issuance ofthis 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."

VPN-010-2023L December 14, 2023 Page 7 of 7 E. ENVIRONMENTAL ASSESSMENT PGE Trojan 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.

Pursuant to 10 CFR 51.22(c)(25), an exemption from Parts 2 and 3 of the Final Rule regarding security event notifications and suspicious activity reporting are subject to a categorical exclusion from the preparation of an environmental assessment or environmental impact statement if (vi) the requirements from which an exemption is sought involve:

(A) record keeping requirements; (B) reporting requirements; or (E) education, training, experience, qualification, requalification or other employment suitability requirements.

Therefore, 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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